Japan is known internationally as a country that is “kind to sex offenders” or “where sex crimes are tolerated“
On the other hand, in 2017, the criminal law regarding sex crimes was finally reformed after 110 years, which is when the current Japanese criminal law was first enacted.
Along with its reform in 2017, officials said that they will “consider further reform if needed, in three years”.
Thus, Japan’s Ministry of Justice (MOJ) held a “Criminal Law Review Meeting on Sex Crimes” from 2020-2021.
This article will include all you need to know about the 2017 reform, and the challenges we are still facing.
what changed with 2017’s law reform?
- Crime title
Article 177: Rape（強姦）
→ Forcible Sexual Intercourse（強制性交等）
Article 178: Quasi Forcible Indecency; Quasi Rape （準強制わいせつ及び準強姦）
→ Constructive Indecendy through Compulsion; Construstive Forcible Sexual Intercourse （準強制わいせつ及び準強制性交等）
- Definition of Crime
Only when a male commits forcible sexual intercourse towards a female
→ includes forcibly engaged vaginal intercourse, anal intercourse, or oral intercourse (referred to as sexual intercourse). The offender / victim is not limited to males / females.
- Legal Penalty
minimum imprisonment: 3 years (shorter than Robbery, which is of 5 years!)
→ 5 years
- Before reform, it used to be a crime that couldn’t be investigated without a formal complaint from the victim.
- newly established: Article 179: Indecency by Guardian of one under 18; Sexual Intercourse of Guardian of one Under 18 (監護者わいせつ及び監護者性交等）
This article made punishment possible for those who commit sexual intercourse etc. towards one that is under 18 when they take advantage of “the influence arising from the fact of having custody” of the minor, even without assault or indimidation.
It was a historic and drastic reform.
Despite the historic reform, there we still face many challenges. During the review meetings, these components were discussed:
- Age of Sexual Consent
Japan’s current criminal law age of sexual consent, is 13. Many countries have been raising their age of consent (eg. USA’s is 16-18 depending on the state, Canada/England/Korea’s is 16), yet, that of Japan has not been altered since the first estblishment of the Penal Code back in Meiji era (1907).
Regarding this, many are seeking the raise of age of consent to 16, so that those who have not finished their compulsary education (which is only up to middle school) will be protected by law, while some are concerced that kids above 14 are held for criminal liability.
- Assault/Intimidation and Mental Incompetence/Inability to Resist Requirements
The Penal Code’s article 177 defines ‘sexual intercourse engaged forcibly through assault or indimidation’ as a crime. Article 178 criminalizes taking advantage of a person’s unconcsious state or inability to resist for sexual intercourse etc.
In many cases, these requirements become big obstacles in suing sex offenders, creating a society in which offenders are left unpunished.
Regarding this, some argue that assault, indimidation, use of drugs and alcohol are the objective factors that are utilized in establishing proof of the crime, and that therefore the requirement should stay, or only slightly altered. On the other hand, those who are pro for the reform, claim that unconsented sex should be criminalized, because the essence of sexual assault lies in the fact it was done without consent.
Although there are different opinions, all must recognize that sex against once’s will is is extremely damaging both mentally and physically, and it tortures victims for a very long period, thus the legal system must function to widely and strictly punish offenders.
- Sex crimes taking advantage of social status and existing relationships
Guardians/caretakers taking advantage of the influence they have upon the victim and engaging in sexual intercourse. etc is criminalized by article 179 (newly established in 2017).
However, there are many cases in which employers, bosses, teachers, etc. utilize their status to sexually assault their employees, students, etc. In this kind of setting, many victims are unable to reject or refuse, due to fear of losing their jobs or social community. Moreover, after the assault, despite many of them being traumatized, they are unable to sue or even talk about it to others.
Therefore, a new article specific to sex crimes of the like is being called for.
- Limitation Periods
Limitations periods unables people from suing an offender after a certain period of time.
The limitation period of article 176 and 177 are each 7 years and 10 years. After this period, victims are unable to sue their offenders.
Recognition and reporting of sexual assault is especially difficult, so the discussion of the extension or abolition of the limitation period is critical.
Currently, in Japan, limitation periods apply to all crimes, except for murder crimes that are apt of the dealth penalty. Therefore, in discussions of the abolition of limitation periods, there are concerns for the legal equilibrium.
Meanwhile, there are people that are calling for the abolishment due to the conditions that sexual assaults could trigger, which include dissociative amnesia and strong PTSD.