On March 29, 2022, we held the second online meeting for Asian lawyers and experts to exchange information and share knowledge. This time, we organized a seminar on the theme of sexual harassment and sexual violence. From Japan, we invited a prominent lawyer specializing in sexual harassment, domestic violence and pornography. She gave a lecture on the current situation and issues of sexual harassment and sexual violence in Japan. In the Q&A session, participants from China shared their experience in handling cases related to sexual harassment and sexual violence and some of the challenges they face.
The contents of the lecture and Q&A session are as follows.
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Japan’s Penal Code related to sex crimes
Until the first revision in 110 years
In Japan, there was no revision of sex crime laws for 110 years until 2017, and many people, including women, did not feel the need or request for revision. When the law was enacted in 1907, patriarchy was the norm, and sexual violence was not a problem. There was no definition of "chastity," but in my interpretation it was in favor of men. Women at that time had no suffrage and could not participate in legislation. Until the Attorney Act was amended in 1933, only men could take the judicial examination. In 1940, three female lawyers were finally born.
Before the revision, Articles 177 and 178 of the Penal Code were called "rape crimes" and "quasi-rape crimes." It was loose to the perpetrators and harsh to the victims. The assault / intimidation was the only constituent requirement of Article 177, and it would not have been a crime without either. At the Supreme Court after the war, the "degree” of assault/intimidation was changed to "to such a degree that it is extremely difficult to resist." As for Article 178, it is “to a degree that I can't resist". Under such a system, there was no perspective on women's human rights. Even now, the human rights of female victims are disregarded. In addition to male-centered mechanisms and ideas, "rape myths" are depriving female victims of their human rights.
The 2017 revision of sex crime laws and issues
In 2019, the Nagoya District Court Okazaki Branch handled a rape case of a 19-year-old daughter who was sexually abused by her biological father. The father was found not guilty because the Court ruled that the daughter disagreed but was not irrefutable and did not meet the requirements of “the crime of quasi-forcible intercourse.” This triggered a mass demonstration called “Flower Demo,” which encouraged people to change their consciousness on sexual violence and arouse public opinion. Regarding the current revision of sex crime laws, the revision debate has been of public interest, and many issues have been discussed. Many women, including victims of sexual violence, demand that the narrow constituent clements of sex crime be broadened. Specifically, not only sexual assault but also "disagreement" is being discussed to be considered as a constituent element.
In the 2017 revision, there were 5 amendments to the penal code.
A man can also be a victim
Not just vaginal intercourse
The name changed from "Rape Crime" to "Forced Sexual Intercourse Crime"
The minimum penalty was raised from three years’ imprisonment to five
The establishment of a new crime involving intercourse by a guardian
Ongoing Legislative Council
The discussion is based on the actual condition of damages and harms caused by sexual violence with the participation of victims, victim support groups, and experts. Until now, the revision had been discussed only by scholars, officials, and victims’ lawyers, and there was no recognition that it was necessary to hear the victim's opinion. After the last revision, the importance of listening to the victim became recognized, and as a result, the victim's perspective is now included in the current revision.
The underlying problem
Even if the revision of the law is realized, there are problems regarding the education of law enforcement officers, including judges, prosecutors, lawyers, and police officers. Even in the faculty of law and graduate school of law, there is a lack of gender education, and those who are involved in law enforcement have not received such education. The so-called "rape myths" remain pervasive and affect not only the treatment of sexual violence as a "criminal case" but also the judgment of a "civil case" in which sexual violence is an illegal act and compensation for damages is claimed. The historical background that women were able to take the bar examination for the first time in 1938 has a lasting effect to this day. Even now, the number of female lawyers does not reach 20% of the total. Neither prosecutors nor judges reach 30%. This bias in the field of law is also related to judgment.
Sexual harassment in Japan
Japan's first sexual harassment lawsuit
Sexual harassment was first tried in a civil case in Japan in the "Fukuoka Case" at the Fukuoka District Court, which was filed in 1989 and rendered a verdict in 1992. This trial was based on the Vinson case tried by the US Supreme Court in 1986, but Japan did not have a law prohibiting sexual harassment (the Civil Rights Act of the United States prohibits sexual harassment). There was no choice but to use “Tort Law” under the Civil Code. Although the treatment of sexual harassment as a tort crime was permitted, it has led to the problem that sexual harassment remains without law. The word "sexual harassment" became popular after winning the Fukuoka case, but it was rather a result of men's weekly magazines making fun of this trial. The essential point of "sexual harassment is a sex crime" was never recognized by society.
Current situation : 30 years later
This year marks the 30th anniversary of our “first win” in sexual harassment lawsuits. It can be said that social awareness of sexual harassment has gradually increased. Today, some measures are taken by companies and universities, and disciplinary dismissal is also used in Japan. However, legal response remains inadequate to this day. In 1997, after the Fukuoka Case, the Equal Employment Opportunity Law was enacted. It obliges business owners to make efforts to prevent sexual harassment. Accordingly, the Ministry of Health, Labor and Welfare has created guidelines for prevention. In 2007, the "employer’s obligation to make efforts" was revised to “employer's obligation to take preventive measures” to be a little stricter. LGBTQ is now covered by this law as well.
The ”Unfair Dismissal" used in Japan was created in the Meiji era (1868 to 1912), when the words “sexual harassment,” “sex discrimination, “ or even “discrimination” did not exist. Originally, it was for damages that could be resolved with money. Therefore, there is a gap between the originally conceived legal framework and the status quo. This gap causes problems such as that there is no legal remedy other than compensation for damages and that the amount of compensation is very low.
International standards and Japan
The ILO Convention No. 190 (Convention concerning the elimination of violence and harassment in the world of work) is the first international treaty to recognize the right of everyone to a world of work free from violence and harassment, including gender-based violence and harassment. It was adopted in 2019 and came into force in 2021. At the time of the adoption, the Japanese government and workers' representatives agreed, but a group of business owners abstained, although it did not oppose it. In order to ratify the convention, there must be domestic laws with penalties and prohibitions. Japan does not meet this requirement and thus lags behind international standards. The Japanese government is reluctant to ratify, and there is not much movement of female workers seeking ratification.
At the Diet in January this year, the opposition party asked the government about ratification, but the answer was that it was "under consideration" and did not mention preparations for ratification.The government is aware that it is okay because sexual harassment is being tried under the tort law. Even if the problem of tort law is pointed out, the government pretends not to know about it. At the Diet in 2019, the opposition party discussed about making a law prohibiting sexual harassment, but it ended without being made. Thirty years have passed since the first sexual harassment case in Japan was ruled in favor of the victim, but the situation remains unchanged with no specific countermeasure for sexual harassment. Neither sexual violence nor sexual harassment will decrease unless the social structure that produces it is transformed, but this point remains unfocused.
In the recent Gender Gap Index which indicates the social structure of each country, Japan ranked 120th among 156 countries. Japan shows very low scores in politics and economy, items used for measuring the Gender Gap Index. Japan’s Politics is the worst 10 for the second consecutive year, and its economy is 117th. However, social structure issues are not of much interest to Japanese women. Even if the Gender Gap Index ranking is recognized in Japan, no fundamental action has been taken to tackle the root causes.
Q&A Discussion
Question 1
Since the revision of the criminal law in 2017, discussions have continued until this year. Please tell us about the relationship between the recent series of law revisions and the MeToo movement. In China, the MeToo movement has been talked about to some extent, and there is a case where the court recognized sexual harassment as one of the types of tort in the Civil Code for the first time. It's highly related to MeToo, but what about in Japan?
Answer
The influence of the MeToo movement is great in Japan as well, and I think the Flower Demo came about as another form of movement protesting sexual violence against women. It's not at the level of the American women's movement, but I think it helps to change people's consciousness.
Question 2
I teach gender part-time at several universities. I sympathize with the fact that there is a strong habit of blaming victims of rape and sexual harassment in Japan. From my own research, it seems that gender issues get complicated when it comes to transgender issues. Even if a women-only space is created to protect women, there is a tendency to refuse the entry of trans women by using the law to prevent sexual harassment. There are complex dynamics in identifying the victim. I think it is also related to the feminist movement that excludes trans women in western countries. From a legal point of view, what should we think of trans men and women as victims?
Answer
Transgender issues are complicated. For example, there has been a long-standing argument that it is scary to have a trans woman in a women-only space, such as a women’s bathroom, but the interpretations of trans women and men are various and ambiguous. For example, gender can be changed legally if the request is filed and approved by the family court after surgery. People who call themselves trans women in Japan have completed this procedure. I don't think it's necessary to call them trans because their gender change was legally approved. Our concern now is that people who have not had surgery but who look like women with hormone therapy. There is a movement that if such people enter the women's bathroom, it may be a violation of women’s security, but I do not agree with that. There is a difference between a trans woman and a man dressed like a woman. I think it is good that people who have not gone through legal procedure but are doing certain things to transform into a woman are treated as women. Regarding sexual violence crimes, the victims are no longer limited to women, so crimes commited against trans women and men may be treated equally.
Question 3
I learned a lot about how law revisions were done in the Diet. It gave me the impression that neither women nor society as a whole is actively working on the revision of sex crime laws. At the same time, there were various movements toward the law revisions in the Diet such as the Flower Demo. So, what made the revision of the law on sexual violence possible while society as a whole has low awareness of sexual violence issue?
Answer
Looking at society as a whole, the power of women was not great, but it was largely that the victims became the center of the movement and raised their voices. Until now, the victims had been silenced, but having a better understanding of the actual situation through their voices has become a great force. Overall, women's interest is still low, but it seems that many women worked hard on the revisions.
Question 4
You mentioned that after the Fukuoka case (the case where sexual harassment was first recognized as illegal), civil sexual harassment proceedings became possible, but even now, 30 years later, the government argues that the tort law is sufficient. So, can it be understood that the victory of the Fukuoka case has backfired on the current revision of the law? If you can redo the Fukuoka case, what changes or corrections do you think should be made?
Answer
It was a good idea at the time to do it under the tort law, and the number of proceedings using the same method increased. Although there were some achievements, the tort law did not reach the core of the problem in order to prevent sexual harassment. I think we need a new law on sexual harassment, but few lawyers agree with this argument.
Also, restriction of the tort law are imposed on the sexual harassment case. In the Civil Code, there is a provision for set-off of negligence (victim's negligence) that can be taken into consideration when considering the amount of compensation for damages. In Japan, sexual harassment and traffic accidents are judged by the same law. The perpetrator can insist on how much problem or failure the victim had, and the amount commensurate with it is deducted from the damage compensation amount. There is no problem in a traffic accident case, but in a sexual harassment case, statements such as “You seduced me, so it was your fault” is often used against the victim. It is unavoidable because the law allows it. In addition, even lawyers do not seem to understand the problems of handling sexual harassment with the tort law. To many, if the victim wins the case and gets compensation, it is the end. They rarely think of the fact that it is not a true relief for the victims.
Question 5
China has also used the Civil Code in sexual harassment lawsuits, just like Japan before the Fukuoka case. Before the tort law was enforced not too long ago, another law was forcibly applied to sexual harassment cases. Currently, there is a tort law, but all the problems raised by you also apply to China. In particular, the burden of proof is difficult. In the case of civil law, it is natural that the plaintiff seeking compensation bears the burden of proof, but in the case of sexual harassment, it is difficult to present evidence. Within the framework of civil cases, that point is not taken into consideration very much. In the case I was in charge of in the past, the perpetrator universally used the civil court’s allegation that it was just trouble faced by a young couple. That is a problem with civil laws.
Answer
Exactly. When the tort law is used, the burden of proof rests on the plaintiff. Victims need to prove various things. In the United States and elsewhere, sexual harassment is treated as sexual discrimination, so victims only have to complain that they have been "discriminated against,” and the burden of proof rests on the perpetrator. This is called the shift of burden of proof. Without the concept that sexual harassment is a sexual discrimination case, the burden of proof cannot be shifted. Another reason why sexual harassment is difficult in ordinary civil lawsuits is that it does not include the perspective that sexual harassment is sex discrimination created by power relations. Since tort law assumes that the relationship between the victim and the perpetrator is equal, sexual harassment is completely different nature. In the first place, sexual harassment involves an imbalance of power, a mechanism in which weak victims suffer very much, both at the time of perpetration and at the time of trial. The perpetrator can hire any number of lawyers, but the victim without financial means has to rely on legal aid.
Question 6
It was said that after the 2017 revision of sex crime laws, men can also be victims in sex crimes. Has there been any change in practice in the past 5 years?
Answer
Men's victimization is rarely exposed. Originally, the victims were mainly women, so even if men come forward as victims, they are considered to be feminine men without masculinity. Such prejudice is still dominant even among prosecutors.
Question 7
What is the overall situation of sexual violence against minors in Japan? Please tell us in detail about the discussions on the revision of sex crime laws.
Answer
This is a big problem in Japan. First of all, sexual activity with a person under the age of 13 is a crime regardless of the consent or disagreement of the child. At the age of 14, the child has to either rebel or verbally express disagreement in order to let the other know that she/he does not consent to sexual activity. Therefore, one of the most important discussion points on the revision is raising the age of consent. There is a debate about how old the age of sexual consent should be raised to, but since compulsory education in Japan is up to the age of 15, I think the age of consent should also be raised to 15.
Another discussion point is statutes of limitations. Currently, the statute of limitations for forcible sexual intercourse is set at 10 years. If you are victimized at the age of 7, you cannot sue the perpetrator 10 years later because you are still a minor. In cases where the victim is a minor, the statute of limitations should be extended, as in Europe. It is wrong that the victim becomes an adult and realizes the damage but cannot sue the perpetrator. There is controversy, but scholars do not agree to extend the statute of limitations.
Regarding sexual violence against minors, the area that has made signicant progress is sexual abuse of students by teachers. There have been many such cases, but until recently, teachers with a history of sexual misbehaviour had been allowed to teach at another school without losing the teacher's license. A recent law breaks this chain and prevents the perpetrator's teachers from teaching again. It was enacted by the victims and their parents. Since nothing can justify the teacher’s sexual violence against the students, I think it became a movement and made the realization of the law possible. However, when it comes to ordinary adults other than teachers, it is another story.
Question 8
It is said that the Equal Employment Opportunity Law for Men and Women has been revised several times, but what does that specifically require? For example, can this law provide relief for sexual harassment and sexual discrimination during job hunting? Also, if sexual harassment occurs in the workplace, is there any legal responsibility not only for the perpetrator but also for the business owner?
Answer
This law basically does not punish perpetrators, but encourages business owners to take measures to prevent sexual harassment. It is called "Employers’ obligation to take measures for employment management,” but the problem is that nothing happens even if the law is violated. The violating company receives a recommendation, but in case it still does not respond, a penalty of disclosing the company name was added in 2007. It does nothing but shame companies, which I find very Japanese. So far, only one company has been ashamed of. Considering the prohibition or elimination of sexual harassment, all the laws are incomplete. Therefore, we argue that a useful law focusing on sexual harassment damage should be created.
Question 9
In China, victims can get business owners arrested by the Sexual Harassment and Gender Committee of a government agency (Taiwan's Labor Bureau, Japan's Ministry of Health, Labor and Welfare) or bring them to trial under the sexual harassment prevention law. In Japan, is it possible for the victim to file a complaint or a trial at the government office in some way other than the administrative penalties?
Answer
The prefectural Labor Relations Commission is the contact point, but the solutions offered there are not very meaningful because they are in line with the standards of the trial, and the amount of compensation is much lower than the trial.
Question 10
Is there any reason why few women are calling for legal and social structural reforms on sexual harassment and sexual violence? Also, is there any reason why there is no major action on diversity when it is being advocated? I have heard that a new LGBT partnership has been established in Japan, but the current situation is that it seems difficult to actually step into it.
Answer
The United Nations Committee on the Elimination of Discrimination against Women called for a ban on gender discrimination in labor. As you pointed out, it seems to be peculiar to Japan that you do not go into the core of the problem and make it look nice on the surface.This is a phenomenon seen in various fields. For example, the 2017 revision of the criminal law has made it possible for men to become victims of sexual violence. Making only women victims violates Article 14 of the Constitution. However, the reason why men were also added has not been explained. It's a shame.
Question 11
I noticed that incidents that caught public and media attention played a major role in promoting the revision of Japanese law. Only after a serious incident occurs will the public be aware of the seriousness of the issue and revise the law. But without that, I think it would be difficult. It may be the same in every country, but what are the strategies of legal scholars and lawyers in such a situation?
Answer
It is the same everywhere that the law is revised in the wake of a big incident. However, even if it is a big incident for us women, it is not for men and society in general. The fact that the rape case by a real father in 2019 became widely known is related to the increase in the number of young women among newspaper reporters. It became widespread when female reporters wrote that it was a big incident. Regarding the strategies of legal scholars and lawyers, I think that those who are interested in sexual violence are a minority. Many criminal lawyers (defense lawyers) oppose the revision of the criminal law because of the heavy sentence. There are also many criminal law scholars who are against it.
Question 12
You have been working in this area for a long time, but why makes you so committed to the issue of sexual violence?
Answer
When I was a student, discrimination against women was commonplace. Even as an adult, I have been discriminated against because of my gender, so I think that anger against discrimination against women has become my energy to fight. I thought that the only way to get a job was to get a license, so I took the bar examination and became a lawyer. The more I work in the field of women's rights, the more work I get because only few others do that. I have been working in such a situation up to this day.
Comment
From my own experience, the situation in China is the same. The first case of sexual harassment was in 2000, Since then, victims of sexual violence and sexual harassment crimes have continued to disseminate information to society, and it has been the power of the last 20 years.
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In Japan, the revision of the Penal Code on sex crimes is currently being discussed at the Legislative Council. This seminar was not only timely but also a good opportunity to learn about the background leading up to the current revision. Moreover, the semar helped us realize that not only is the judicial world still dominated by patriarchal ideas, but the low awareness of women's rights in society as a whole is a fundamental problem. A society in which violence and discrimination against women cannot be punished is by no means a society in which human rights are respected. Therefore, it is important to increase awareness and knowledge of gender issues through education and awareness-raising activities in order to create a society free from all forms of gender-based violence and discrimination.
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