Sexual Violence and the Law in Japan

Catherine Burns

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781134327638
• Edition: 1
• Topic: History
• Subtopic: Japanese History
• Index: History

This book provides a detailed examination of judicial decision-making in Japanese cases involving sexual violence. It describes the culture of 'eroticised violence' in Japan, which sees the feminine body as culpable and the legal system which encourages homogeneity and conformity in decision-making and shows how the legal constraints confronting women claiming sexual assaults are enormous. It includes analysis of specific case studies and a discussion of recent moves to address the problem.

1 Legal storytelling and sexual
violence

If there were no punishment for rape, we would all be rapists. We do not become (rapists) because there is the deterrent of punishment.

(Nishimura Shingo, quoted in
The Japan Times, 20 Oct. 1999: 1)

This statement, made in 1999 by then Vice Defence Minister Nishimura Shingo, provoked strong protests in Japan and among neighbouring countries not because the reference to all men being potential rapists was offensive but because he was drawing an analogy with nuclear weapons, arguing that Japan should consider possessing them for their deterrence value. Of more critical concern to this book are Nishimura's assumptions regarding masculinity, the nature of male sexuality and the power of law.

Nishimura is not the only prominent figure in Japan to have drawn public analogies between masculinity and rape. In 1984 Miura Shumon, former Director-General of Japan's Agency for Cultural Affairs, observed that: ‘although it is shameful for a gentleman to rape a woman, it is also shameful for a man not to have the physical strength necessary to rape a woman’ (Miura Shumon, quoted in Brickman 1986: 38).

The following year, in another interview Miura stated:

It would be better if rapists would choose unchaste women as their victims. Those women would probably take such incidents as lightly as tumbling down in a puddle … They might even be proud of themselves, believing they were raped because of their charm.

(Miura Shumon, quoted in Brickman 1986: 38)

In June 2003 at a population seminar, Ota Seiichi, Liberal Democratic Party (LDP) Diet member and former head of the Management and Coordination Agency, stated that men who gang rape are more virile and therefore more ‘normal’ than weak men who lack the courage to marry. His comment was made as news was beginning to break on a story of gang rapes organised by elite university students' social clubs (see The Australian, 26 November 2003: 30–31). One week later Chief Cabinet Secretary Fukuda Yasuo commented to reporters that ‘because men are like black panthers a degree of leniency should be accorded to a rapist if the woman dressed provocatively (The Japan Times, 4 July 2003). These ‘political gaffes’ suggest that rape discursively inscribes the appropriately masculine body with physical strength, aggression and an instinctive natural sexuality that demands release. The very public ‘gaffes’ also suggest that images of the violent sexual domination of women signal ideals of masculine sexuality and constitute a ‘story’ that displaces alternative images of rape as injury — how else could such public proclamations be explained? This ‘story’ resonates with a discursive construction of rape as a sexual attack by a man, overwhelmed by his instinctive sexual urges, on a woman who is guilty of arousing those urges unless or until she can prove her innocence — a narrative so familiar it is generally relegated to the categories of myth and fantasy. Yet, it is sustained in the courtroom and beyond; circulating within and partially constituting a broad culture of eroticised violence that is produced or facilitated by the perception that rape might be a mere ‘tumble down in a puddle’ — silencing conceptions of rape as unambiguous harm to women.

In Tokyo and other large urban centres, images of naked female bodies abound on the covers of magazines and comics sold in bookstores, kiosks and vending machines, on billboards, late night television shows and on the flyers advertising specialised sexual services which are hand-delivered daily into letterboxes and posted onto telegraph poles, telephone boxes and other available space. There is a highly visible mass culture of commodified female bodies, often eroticising their violation and degradation and this is augmented by a constantly changing array of cafés, clubs and services catering to predominantly masculine sexual pleasures. The conventions contained within this culture construct sex, gender and (hetero)sexuality in particular ways, privileging particular forms of male heterosexuality and denying female subjectivity. In other words, the culture of eroticised violence institutionalises a system of ‘compulsory heterosexuality’ (Rich 1980), which imposes sexual difference, locating the male as active desiring subject and female as passive object ofthat desire. The very pervasiveness of this culture normalises the images and practices of sexual violence (see Yunomae 1990: 137; Funabashi 1995: 255–263; Kinjō 1991: 256; Buckley 1991: 181–182).

However, this culture is not, as is often assumed, entirely tolerated. The caretaker of the central Tokyo apartment block in which I lived included in his morning ritual the removal of all flyers advertising sexual services from each of the mailboxes (with what appeared to be little regard for issues of privacy). I also observed like-minded citizens, men and women, similarly incorporating into their daily routine, the tearing down of ‘offensive’ posters from telegraph poles, phone boxes and so forth. The nightly replacement of these materials was, however, predictable. Japanese feminists have also contested what many refer to as the ‘pornographic culture’ or ‘pornographic society’ (Funabashi 1995: 255–263; Yunomae 1990; Miya, interview in Buckley 1997: 168). Political action and protests have targeted particular sexist materials, behaviours and advertising campaigns. Protests, telephone hotlines and surveys, aimed at identifying, naming, and raising public awareness of sexual assault, have served to begin the process of ‘breaking the silence’ surrounding sexual violence against women. Generating community support and attracting media attention to particular trials has also been an effective yet often overlooked strategy in shifting public awareness.¹

Sexual harassment cases, in particular, are attracting broad public interest and it is evident that social attitudes are changing. Laura Miller (1998: 45) notes that this is reflected in various recent articles published in two popular magazines for young women (Can Cam and Say), which indicate that it is no longer ‘cool’ or acceptable to respond to sexual harassment by giggling or acting flattered. When the word ‘sexual harassment’ (sekushuaru harasumento) entered Japan in 1988 the subject took the popular media by storm. The word was shortened to sekuhara and voted the most popular new word in 1989. However, rather than acknowledging a specific and pervasive harm done to women, the term was used in popular discourse to trivialise and undermine the significance of this new challenge to what had been perceived as inevitable practices or effects of masculine sexuality. The first cases of sexual harassment entering the courts² received mixed responses. There were some successes, but other decisions were clearly influenced by rape myths. A decade later, however, there are clear indications of a shift in the pattern of judicial decision-making. The amount of damages being awarded to each plaintiff is gradually increasing as is the number of cases being found in favour of the plaintiff.³ Moreover, the first legislation on sexual harassment (in the amended Equal Employment Opportunity Law) went into effect in April 1999. It is possible that the evident re-thinking of gendered power relations and the harm of sexual assault, which appears to be taking place in civil sexual harassment cases, will have an impact on future criminal rape and indecent assault cases. A central question in this book concerns the extent to which judicial decision-making responds to these competing social discourses concerning sexual violence, or rather, how the law might incorporate alternative stories of sexual violence that are largely excluded from the dominant discourse of rape.

In all cases that come before the courts, experiences and understandings of ‘what actually happened’ are reduced to simplified ‘facts’ in the ritualistic processing of criminal and civil trials. Institutional and administrative procedures are bound by legal principles and rules, which in the courtroom pertain to areas such as admissibility of evidence, relevance and so forth. These legal requirements inevitably constrain and shape the articulation of human experiences and perceptions of ‘reality’ and this inevitably impacts on judicial decision-making. Moreover, given the context of limited time and financial resources, the process of adjudication is essentially less concerned with ‘reality’ than it is with the efficient determination of ‘facts’ and a single version of ‘truth’. The law, therefore, is limited in its capacity to recognise the full complexity of individual experience.

In cases involving sexual violence these broad limitations of legal procedure take on a more specific character. The determination of ‘facts’ and ‘truth’ at the centre of legal rules, principles and the process of adjudication produces sex, gender and sexuality as natural systems. As Judith Butler (1990: 140) argues, these forms that appear natural are an effect of norms produced over time by multiple discourses. The norms produced by the legal discourse of rape achieve their dominance at least in part from a particular narrative device. This device, mobilised in Japanese courtrooms (and elsewhere), incorporates a suggested link to particular theories of a natural world, of sexual drives, of a basic state of social organisation and behaviour. These ‘theories’ however, are never made explicit in the narrative, but the presumption and authority of verifiability as a theory is used as the basis or rationale for developing opinions and judicial decisions (see Amsterdam and Bruner 2000: 29–30). The implicit link to the theory strengthens the appeal of the narrative by concealing the choices that have been made in mobilising one argument or theory rather than another. Moreover, association with ‘the natural order of things’ suggests common-sense understandings that require no further explanation. And the most convincing arguments are those that go without saying. My goal is to explore that which goes without saying, or more specifically, to highlight the assumptions and normative standards that constitute persuasive narratives of sexual assault and to articulate the ways in which the Japanese legal discourse on rape produces and regulates the intelligibility of sex, gender and sexuality.

By offering an interpretive analysis of how judges come to their conclusions in particular sorts of cases, I suggest that the overwhelmingly positive evaluations of the Japanese criminal justice system are troubling for women claiming sexual assault. The cases analysed in this study indicate that there are two types of rape: tsūjō and fushizen. Only tsūjō rape cases (those conforming to stereotypic rape scenarios) are granted credibility in the courts. Women's alternative perceptions and experiences of fushizen rape (those which complicate the stereotypic rape scenario) are consistently distrusted, dismissed or not heard at all. This patterning effect is produced not by the establishment of legal rules and principles, but by the deployment of extra-legal factors that shape the interpretation of ‘facts’ in the adjudication process. Of central significance is the culture of eroticised violence in Japan that sustains and perpetuates a ‘rape script’ or dominant narrative of rape that frames judicial perceptions of sexual violence. The limited biological understandings of sex, sexuality and gender that inform this ‘rape script’ are therefore reproduced and reinforced through legal discourse. The ‘rape script’ also inscribes the feminine body as culpable and as such facilitates the notion of victim precipitation in cases that do not conform to dominant narratives of rape, a notion that diminishes the perceived harm of rape. While this study highlights the repressive effects of law's discursive construction of rape on women's ability to relate their experiences of sexual assault in court, I also follow Judith Butler's (1993: 22) assertion that ‘“repression” operates as a modality of productive power’. While Butler is concerned more specifically with theoretical questions regarding the explanatory potential of psychoanalytic vocabulary, her point is also applicable to empirical studies of law. I suggest that contrary to some feminists' rejection of law as a productive site for struggle, possibilities for feminist intervention emerge precisely out of the oppressive effects of law.

Emerging stories of sexual violence in Japan

Linkages between law, violence against women, and constructions of sex, gender and sexuality have received much academic attention in Anglophone countries, and increasing attention in Asian countries (e.g. Manderson and Bennett 2003 for a range of Asian countries; Idrus 2001: 43–56 for Indonesia; Goodstein 1996: 275–286 for Vietnam; Hilsdon 1995 for the Philippines; Rastam 2002 for Malaysia). In Japan this is still relatively unexplored territory, certainly in the English-language material. However, the growing number of Japanese-language texts, articles and newsletters on sexual violence and the recent implementation of new laws in this area (see Chapter 3) are indicative of Japanese feminists' increasing interest in this subject. In 1984 Miya Yoshiko published one of the first books on the topic, documenting the difficulties facing victims⁴ of sexual assault in Japan, including their experiences of legal trials. The October 1990 edition of the legal journal Hōgaku Seminā contained six articles by feminist lawyers. The following year, two books by feminist lawyers Tsunoda Yukiko (1991) and Kinjō Kiyoko (1991) examined the institutionalisation of marriage, prostitution, heterosexuality and male violence, focusing on the ways that Japanese law reflects and reproduces patriarchal social structures. Tsunoda, in particular, concludes with a warning that legal and state intervention in the area of ‘private relations’ needs to be approached with great caution. These insights are further developed in a book by leading feminist lawyer and Diet member (elected in 1998), Fukushima Mizuho (1997). Fukushima highlights women's various subject positions as battered wives, single mothers, prostitutes, rape victims and sexually harassed workers, to challenge the supposed neutrality of judges and to document social and judicial constructions of marriage, sex, sexuality and the category of ‘woman’ in Japan.

Miya, Tsunoda, Kinjō and Fukushima share a concern in understanding how legal knowledge excludes women's experiences of sexual violence and how these problems can most effectively be challenged and remedied. While legal reform in some areas is suggested, these authors appear reluctant to embark on this course. Tsunoda (1991) and Kinjō (cited in Miya 1984: 220), for example, argue that problems often lie in the interpretation of the law rather than the letter of the law itself. These works have made a primary contribution to the emerging body of literature documenting the sexual abuse of women in Japan and particularly to legal responses in this area. They play a critical role in retrieving and telling the stories of women who have been targets of sexual abuse — stories frequently silenced in both the courtroom and society at large. It is also clear from their work that the conventional explanation that adjudication is the result of a process of the application of objective rules, principles and facts does not adequately explain the process of selecting between conflicting stories.

Japanese approaches to judicial decision-making

Itoh Hiroshi (1970: 775–804) identifies two main approaches to judicial decision-making in post-war Japan: ‘Minshohō’ and ‘Experimentalist’. Both identify three stages of the judicial decision-making process: (1) factfinding, (2) legal interpretation, and (3) application of law to ascertained facts. The two schools differ primarily in terms of the degree of emphasis that should be placed on the various stages and the progression of the stages. According to the Minshohō school, the process of judicial decisionmaking follows a progression: fact → rule of law → decision. While it is acknowledged that the ideology or value-orientation of judges influences fact-finding, a case is ultimately decided on the basis of objective and predictable legal norms rather than subjective value judgements. The analysis of judicial decisions should therefore focus on the causal relationship between the decision and the facts. The outcome of a case, according to the Minshohō school, is best explained by analysing the judicial reasoning contained in the written text of the judgment, because this contains the underlying legal norms that link facts with the final decision.

In contrast, the Experimentalists conceptualise the process of judicial decision-making in terms of a progression from: facts → conclusion → rationalisation. They argue that the judicial reasoning in a written judgment does not accurately reflect the actual decision-making process. Rather, a process of feedback takes place between ascertainable facts and tentative conclusions and then the final decision is rationalised in such a way as to appear to accurately reflect the actual decision-making process. Judges are obliged to do this because they are bound by rules of law and the concept of stare decisis (judicial precedent). Although Japan follows a civil law rather than a common law tradition, precedents are important. While prior decisions are rarely cited in the written judgments of particular cases, influential decisions are regularly discussed in legal publications. Within the Experimentalist school the most extreme position is put forward by Katō Ichirō who argues that: ‘judges use their hunches first to decide the solution of conflicting interests and only after that try to justify their conclusion by the inductive process in a convincing and persuasive manner’ (Katō, cited in Itoh 1970: 794).

According to the Experimentalists, the most influential factors in judicial decision-making are the judges' value systems and their obligation to harmonise their decisions in terms of existing legal norms — not the rule of law, as the Minshohō school advocates. The written judgment is therefore, essentially, the justifica...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Dedication
• Contents
• List of tables
• Series editor's foreword
• Acknowledgements
• Prelude: rape v. murder – or (excessive) self defence?
• 1 Legal storytelling and sexual violence
• 2 Hegemonic masculinity and guilty feminine bodies
• 3 Confronting the Japanese criminal justice system
• 4 Credibility in the court: scripting rape
• 5 ‘In truth she was probably very drunk’: women subject to scrutiny
• 6 Markers of truth: silencing women in the court
• 7 Subversive stories and feminist strategies
• 8 Conclusion
• Appendix 1: legal definitions
• Appendix 2: the cases
• Notes
• Bibliography
• Index