Introduction:​

On January 17, 2023, Japan’s Legislative Council further modified its draft plan to revise the existing sex crimes penal code. Most notably, the January 2023 draft revision changed the October 2022 draft revision provision defining the punishable crime of forced sexual intercourse from “making it difficult [for the victim] to refuse” to “making it difficult for the victim to form, express, or fulfill the intention not to consent.” [1]

 

While Human Rights Now (hereafter referred to as “HRN”) commends the Legislative Council’s willingness to modify the existing sex crimes penal code to more effectively uphold the human rights of survivors of sex crimes in Japan, the January 2023 draft revision provision defining the punishable crime of forced sexual intercourse still fails to meet international rape legislation standards that Japan is obligated to as a State Party to the Convention on the Elimination of All Forms of Discrimination Against Women (hereafter referred to as “CEDAW”), and is guaranteed to continue excluding victims of rape who do not actively demonstrate non-consent to unwanted sexual intercourse from accessing the justice they deserve.

 

So as to prevent gaps in the legal system that allow offenders of sex crimes to evade punishment; to ensure that Japanese rape legislation meets international rape legislation standards as required under CEDAW; and to uphold the human rights of survivors of sex crimes currently unable to access justice, HRN demands that the Legislative Council both clarify and expand the scope of forced sexual intercourse in Japan by defining the crime of rape as all non-consensual sexual intercourse.

 

Background:

According to the Japanese government’s 2017 Cabinet Office survey, 1 in 14 Japanese women and 1 in 100 Japanese men have experienced forced sexual intercourse in their lives,[2] equating to around 4.64 million Japanese women and 610,000 Japanese men. However, only 1,405 cases of forced sexual intercourse in Japan were recognized in 2019, and only 470 of these cases, equivalent to 33.6%, were actually prosecuted.[3] A major reason for the significant disparity between the number of cases of forced sexual intercourse that occur in Japan, the number of cases of forced sexual intercourse that are recognized in Japan, and the number of cases of forced sexual intercourse that are prosecuted in Japan is the strict requirements, such as proof of “assault or intimidation,” insanity, and inability to resist, that survivors must prove to fulfill the current Japanese penal code’s definition of punishable forced sexual intercourse. 

 

The most recent revision to Japan’s sex crimes penal code occurred in 2017, the first time the penal code was revised in 110 years. This 2017 revision effectively replaced a gendered title of rape to a gender-neutral title; expanded the scope of forced sexual intercourse to include more sexual acts; removed the requirement that the victim of forced sexual intercourse must be female, thereby excluding male and nonbinary victims; increased the minimum prison term for forced sexual intercourse from three years to five years; allowed public prosecutors to charge sex offenders with or without the filing of complaints by victims; and imposed new punishable penalties for sexual offenses without intimidation or violence against minors below the age of 18 by their parents or other guardians.[4]

 

Despite these commendable and necessary revisions to Japan’s sex crimes penal code, the 2017 revision received much criticism from survivors of sex crimes and survivors’ advocacy groups, including HRN [5], for failing to raise the age of consent above 13; impose new penalties for cases with power imbalances besides a parent or guardian; and remove the “through assault or intimidation” requirement for punishable cases of forced sexual intercourse.[6] In an effort to promote access to justice for survivors of sex crimes, HRN released a survey report in 2018 documenting the trend in international rape legislation conventions towards a consent-based model [7] and initiated a signature campaign in 2019, which has since received over 130,000 signatures, requesting that the Ministry of Justice further revise the sex crimes penal code.[8]

 

As a direct result of HRN’s joint-activism with survivors and other survivors’ advocacy groups to promote access to justice for survivors of sex crimes in Japan, the Ministry of Justice established a study group on criminal law concerning sex crimes to discuss issues in the 2017 revision. The study group concluded that it was necessary to establish a Sub-Committee to propose and deliberate additional revisions to the sex crimes penal code. In response, a Legislative Council Criminal Law (sex-crime related) Sub-Committee (hereafter referred to as “Legislative Council”) was successfully established in October 2021, and draft revisions to the sex crimes penal code were proposed by the Legislative Council in October 2022 and most recently in January 2023. HRN has closely monitored all thirteen of the Legislative Council’s meetings that have been held,[9] and actively works with Sub-Committee members to realize a legal system that will comprehensively and effectively protect the human rights of all survivors of sex crimes in Japan.

​

October 2022 Draft Revision Content:

In October 2022, the Legislative Council proposed a draft plan to revise the existing sex crimes penal code. This October 2022 draft revision would effectively: widen the range of punishable sexual acts through raising eight specific cases considered a punishable crime, including actions taking advantage of a “physical or mental disability,” “the influence of alcohol or drugs,” and “the misuse of economic or social status;” harshen penalties for sexual violence against children including raising the age of consent from 13 years to 16 years, and imposing new punishable penalties for luring children to places to sexually assault them and for “grooming;” extend the statue of limitations for forced sex crimes by five years for victims of all ages, plus the period until the victim turns 18 for victims who are minors; impose new punishable penalties for camera voyeurism and sending images and videos to multiple people; and replace the “assault and intimidation” requirement with “making it difficult [for the victim] to refuse.” [10]

While HRN commends the Legislative Council’s efforts to modify the existing sex crimes code, this draft plan continues to fail to meet survivors’ calls for a simple and clear provision defining the punishable crime of forced sexual intercourse as all non-consensual sexual intercourse. The “assault and intimidation” requirement in the current sex crimes penal code requires that assault and intimidation be present in order for an offender to be punished for committing the crime of forced sexual intercourse. Consequently, sex crimes prosecutions in Japan currently revolve around the subjective assessment of determining if a survivor demonstrated sufficient resistance.[11] It is imperative to acknowledge that the October 2022 definition of forced sexual intercourse will still require prosecutors to prove that victims were in no condition to form or express their rejection to the sexual act, systematically excluding cases of rape, such as the case of Ayumi Ikeda’s, in which the survivor does not fight back or physically demonstrate refusal to the sexual intercourse.[12] As HRN founder and Tokyo-based human rights lawyer Kazuko Ito has stated, the October 2022 draft revision will continue to “question the circumstances of the victim” and “will be just like the existing one that forces victims to prove they fought back.”[13]

​

January 2023 Draft Revision Content:

Most recently on January 17, 2023, the Legislative Council further modified its draft plan to revise the sex crimes penal code as a result of ongoing criticism from survivors and survivors’ advocacy groups. Modifying the October 2022 draft revision, the January 2023 draft revision removes the “coping ability” requirement in the provision raising the age of consent from 13 years to 16 years, a modification HRN considers a positive step forward for protecting children’s rights, and changes the provision defining the punishable crime of forced sexual intercourse from “making it difficult [for the victim] to refuse” to “making it difficult for the victim to form, express, or fulfill the intention not to consent.” [14] HRN reiterates that the January 2023 draft revision provision defining the punishable crime of forced sexual intercourse is guaranteed to continue excluding victims of rape who do not actively demonstrate non-consent to unwanted sexual intercourse, such as Ayumi Ikeda, from accessing the justice they deserve. Additionally, the January 2023 draft revision not only proposes a definition of rape that lags far behind the consent-based models of rape legislation currently utilized in the legal systems of other industrialized States, [15] but it fails to meet international rape legislation standards that Japan is obligated to as a State Party to CEDAW.

​

Evolving International and Conventional Rape Legislation Standards:

In a 2010 opinion on Karen Tayag Vertido v. the Philippines, the Committee on the Elimination of Discrimination against Women (hereafter referred to as “the Committee”) proposed two models of rape legislation acceptable under international rape legislation standards: one which “requires the existence of ‘unequivocal and voluntary agreement,’” known in legal theory as the “consent-based model,” and one which “requires that the act take place in ‘coercive circumstances,’” known in legal theory as the “coercion-based model.” [16] Despite the technical differences between these two legal theories, the Committee stated that it has “clarified time and time again that rape constitutes a violation of women’s right to personal security and bodily integrity, and that its essential element was lack of consent.” [17] Committee member Dr. Yoko Hayashi of Japan submitted a concurring individual opinion to the Vertido v. the Philippines opinion recognizing the potential for this decision to universalize rape laws through establishing two models, both of which retain “lack of consent” as the essential element. [18]

 

Citing the Vertido v. Philippines opinion, the Committee further clarified in the R.P.B v. the Philippines opinion that “there should be no assumption in law or in practice that a women gives her consent because she has not physically resisted the unwanted sexual conduct, regardless of whether the perpetrator threatened to use force or used physical violence.” [19] To formally codify the aforementioned case opinions into international rape legislation standards, in 2017 the Committee updated General Recommendation No. 19 and released General Recommendation No. 35 on gender-based violence against women, requiring that States Parties ensure that “the definition of sexual crimes… is based on the lack of freely given consent and takes into account coercive circumstances.” [20] Consequently, while CEDAW States Parties are free to choose whether to utilize a consent-based model, a coercion-based model, or a combination of both in the development of their rape legislation, it is absolutely necessary that the rape legislation both 1) involve the concept of “lack of consent,” and 2) not require women to physically resist in order for States Parties to meet international rape legislation standards that they are obligated to under CEDAW. 

 

It is also important to note that the conventional rape legislation standard, particularly among industrialized States in parity with Japan, is evolving towards a consent-based model. As previously cited, HRN’s 2018 investigative survey of 10 industrialized countries in both the “West” and in Asia demonstrated a trend in conventional rape legislation standards towards a consent-based model. [21] In Europe, this trend has likely been a result of the European Court of Human Rights’ 2003 opinion on M.C. v. Bulgaria and the 2011 Istanbul Convention. M.C. v. Bulgaria groundbreakingly established that since “victims of sexual abuse—in particular, girls below the age of majority—often provide no physical resistance because of a variety of psychological factors or because they fear violence on the part of the perpetrator… any rigid approach to the prosecution of sexual offenses, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardizing the effective protection of the individual’s sexual autonomy.” [22] The 2011 Istanbul Convention, which has been signed by all European Union Member States, [23] built upon M.C. v. Bulgaria’s legal theory that physical resistance is not required for sexual acts to be considered rape by explicitly putting forth a consent-based model which requires all States Parties to take the necessary legislative or other measures to ensure that “engaging in non-consensual vaginal, anal, or oral penetration of a sexual nature of the body of another person with any bodily part or object” is criminalized. [24] The European Court of Human Rights has also cited that the M.C. v. Bulgaria opinion built upon judgements affecting populations in conflict made by the International Criminal Tribunal for the former Yugoslavia, particularly the 2022 Kunarac, Kovac, and Vukovic decision, which established that “force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape.” [25] Research has shown that this transition to a consent-based model of rape legislation that does not require resistance in Europe has coincided with a significant increase in survivors’ access to justice; for example, it was found that conviction rates for rape rose 75% in Sweden after transitioning to a consent-based model. [26]

Lastly, it is apparent that the conventional rape legislation standard is evolving towards a consent-based model among legal experts and survivors’ advocacy groups around the world. Legal experts Eithne Dowds (2019) [27] and Camilla Koljonen (2019) [28] both find in their comparative studies of rape legislation that the consent-based model is preferable to coercion-based model because it more accurately reflects rape as a violation of personal integrity and sexual autonomy, and clearly prohibits all non-consensual sexual activity. In 2021, the UN Special Rapporteur on violence against women Dubravka Simonovic, arguably the ultimate legal expert on international rape legislation standards, attached an addendum to the Special Rapporteur’s report on rape, which presented a Framework for Model Legislation on Rape, including a Model Rape Law. Simonovic’s framework defines rape as “an act of a sexual nature committed without consent” and stipulates that “definitions of rape should explicitly include lack of consent and place it at its center.” [29] Japanese survivors’ rights organizations such as HRN, Spring, and VoiceUp Japan have also voiced support for use of a consent-based model to ensure that no survivor is unable to access the justice they deserve simply because they did not demonstrate resistance or say “no.”

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HRN’s Concerns Regarding the January 2023 Draft Revision:

Given the evolving international rape legislation standards, HRN is deeply concerned that the Legislative Council’s January 2023 draft revision, particularly the provision defining the punishable crime of forced sexual intercourse as “making it difficult for the victim to form, express, or fulfill the intention not to consent,” fails to meet international rape legislation standards that Japan is obligated to under CEDAW. There is a significant legal distinction between “lack of consent,” which CEDAW establishes as an essential element to the crime of rape, and “the intention not to consent,” as included in the provision defining the punishable crime of forced sexual intercourse in the Legislative Council’s January 2023 draft revision. While “lack of consent” is a passive term that does not require the victim of a sex crime to present any specific actions or behaviors for an unwanted sexual act to be non-consensual, “intention not to consent” is an active term that does require the victim of a sex crime to present specific actions or behaviors for an unwanted sexual act to be non-consensual. As a result, despite the Legislative Council first removing the “assault and intimidation” requirement in its October 2022 draft revision, and subsequently changing “difficult to refuse” to “intention not to consent” in its January 2023 draft revision, rape legislation in Japan will continue to require survivors of sex crimes to prove to prosecutors that they actively presented specific actions or behaviors, which will likely continue to be actions or behaviors demonstrating resistance, violating CEDAW’s requirements that rape legislation both 1) involve the concept of “lack of consent,” and 2) not require women to physically resist.

 

HRN accepts and supports both the experiences of survivors of forced sexual intercourse who testify that they were unable to present specific actions or behaviors demonstrating their intention not to consent to unwanted sexual acts, and of scientific research that provides psychological reasons behind this reaction. Survivors of forced sexual intercourse commonly express that they were unable to present their intentions not to consent during the unwanted sexual act due to fear of reprisals if they demonstrated resistance, particularly if the offender is someone with whom they have a personal relationship or power relationship with; worry that demonstrating resistance will anger the offender and make the offender even more violent, which sometimes results in the victim “friending” the offender; and involuntary bodily paralysis, which prevents the victim from reacting at all. HRN stands by survivors and reaffirms that the failure not to consent to unwanted sexual acts does not negate the sexual acts from being considered forced sexual intercourse. Rather than proving lack of the survivor's refusal, HRN believes the offender must prove the presence of the survivor’s consent, since “women do not walk around in a state of constant consent to sexual activity unless and until they say ‘no’, or offer resistance to anyone who targets them for sexual activity. The right to physical and sexual autonomy means that they have to affirmatively consent to sexual activity.” [30]

 

Advanced scientific research has established a variety of common reactions when the human body is subjected to an attack, known as the “5 F’s,” including Fight, Flight, Freeze, Flop, and Friend. [31] While humans have conscious control over the fight, flight, and friend reactions, freeze and flop reactions tend to occur unconsciously as instinctive survival responses and can prevent a victim of an attack from reacting consciously or in any way at all. Instructor of Psychology at Harvard Medical School Dr. James Hopper has conducted extensive research validating these bodily reactions, and has groundbreakingly concluded that freezing “happens in a flash, automatically, and beyond conscious control” and “occurs when the amygdala—a crucial structure in the brain’s fear circuitry—detects an attacker and signals the brainstem to inhibit movement.” [32] As a result, survivors of sex crimes who “freeze” and therefore fail to present non-consent do so not because they are consenting to the unwanted sexual acts, but because they physically are unable to react due to unconscious, uncontrollable bodily paralysis. At HRN’s March 2022 Webinar, Dr. Azusa Saito, a full-time lecturer of Psychology at Mejiro University and a clinical psychologist, certified psychologist, and doctor of psychology, also described in detail the various reactions that can occur when a human being is subjected to an attack, including the commonly known “fight or flight” responses, in addition to the “freeze,” “friend,” or “dissociation, tonic mobility, and pseudo-death” responses that Japanese rape law completely fails to consider. [33]

Given the reality that victims of forced sexual intercourse often “freeze” or “flop” and are therefore unable to present specific actions demonstrating their intention not to consent to unwanted sexual acts, there exists a major gap in the January 2023 draft revision that is guaranteed to continue excluding a significant portion of victims of rape and allow offenders of sex crimes to evade punishment. At HRN’s April 2022 Webinar, Ms. Junko Nakayama, a lawyer and a member of HRN’s Women’s Rights Project, demonstrated that applying a coercion-based model similar to the January 2023 draft revision provision defining the punishable crime of forced sexual intercourse to a variety of actual Japanese sex crimes court cases in which the offender was acquitted still legally results in acquittals of the offenders. [34] HRN therefore concludes that the January 2023 draft revision is merely a wording modification that, in practice, will not increase the protection of survivors’ human rights or provide them with significantly greater access to justice than they possess under the flawed sex crimes penal code as it currently exists. This is not only morally unacceptable on behalf of survivors, but it is a violation of Japan’s legal obligations as a State Party to CEDAW.

​

HRN’s Recommendation:

• HRN calls for the Legislative Council to further amend its draft plan to revise the sex crimes penal code to both clarify and expand the scope of forced sexual intercourse in Japan by defining the crime of rape as all non-consensual sexual intercourse.

​

References:

1. Nippon, “Japan Amends Sex Crime Requirement in Draft Law Revision.” January 17, 2023. https://www.nippon.com/en/news/yjj2023011700471/ 

2. Japan’s Cabinet Office survey on “Experience of forced sexual intercourse from the opposite sex.” 2017. https://www.gender.go.jp/policy/no_violence/e-vaw/chousa/pdf/h26danjokan-8.pdf

3. Human Rights Now, “Aiming to Realize a Better System to Protect Victims of Sexual Violence.” 2020. https://hrn.or.jp/activities/project/women/womensrights-2020/ 

4. Nippon, “Japan's Revised Penal Code Goes into Force.” July 13, 2017.  https://www.nippon.com/en/behind/l10380/ & Ayşe Haruka Açıkbaş Oshima, VoiceUp Japan, “Age of Consent in Japan: Are the Youth Protected and Empowered by the Current Laws and Guidelines?” https://www.voiceupjapan.org/en/age-of-consent-in-japan-are-the-youth-protected-and-empowered-by-the-current-laws-and-guidelines/

5. Human Rights Now, “Statement on the Proposed Amendment to the Sexual Offenses Provisions of the Penal Code.” March 8, 2017. https://hrn.or.jp/activity_statement/10262/ 

6. Ayşe Haruka Açıkbaş Oshima, VoiceUp Japan, “Age of Consent in Japan: Are the Youth Protected and Empowered by the Current Laws and Guidelines?” https://www.voiceupjapan.org/en/age-of-consent-in-japan-are-the-youth-protected-and-empowered-by-the-current-laws-and-guidelines/ & Brooke Larsen, Savvy Tokyo, “ 4 Japanese Laws That Desperately Need To Be Amended For Women.” October 4, 2019. https://savvytokyo.com/4-japanese-laws-that-desperately-need-to-be-amended-for-women/

7. Human Rights Now, 10-country research study on “Punishment for sex crimes: What's going on in the world?” 2018. http://hrn.or.jp/2019_sex_crime_comparison/#sec01 

8. Change.org Campaign, “Call on Minister of Justice to Amend Criminal Law on Sex Crimes.” 2019. http://chng.it/Jhtb2hJp 

9. Japan’s Ministry of Justice, “Legislative Council - Criminal Law (Sex Offenses) Subcommittee” meetings list. https://www.moj.go.jp/shingi1/housei02_003011 

10. Mainichi, “Japan's legal penalties for sex crimes need further review.” October 29, 2022. https://mainichi.jp/english/articles/20221029/p2a/00m/0op/010000c & Huffington Post, “New draft proposal for revision of penal code for sex crimes Ministry of Justice.” January 17, 2023. https://www.huffingtonpost.jp/entry/story_jp_63c10c6ce4b0b2e150701561

11. The Asahi Shimbun, “Law must make clear all sex crimes deserve punishment.” October 27, 2022. https://www.asahi.com/ajw/articles/14753298

12. The Asahi Shimbun, “Rape victims outraged over legal proposals for sex crimes.” October 25, 2022. https://www.asahi.com/ajw/articles/14751681

13. Ibid.

14. Nippon, “Japan Amends Sex Crime Requirement in Draft Law Revision.” January 17, 2023. https://www.nippon.com/en/news/yjj2023011700471/

15. Human Rights Now, 10-country research study on “Punishment for sex crimes: What's going on in the world?” 2018. http://hrn.or.jp/2019_sex_crime_comparison/#sec01 

16. Vertido v. the Philippines, Communication No. 18/2008, Committee on the Elimination of Discrimination against Women. July 2010. Para 8.9 (b)(ii)(a). https://digitallibrary.un.org/record/791502?ln=en

17. Ibid, Para 8.7

18. Dr. Eithne Dowds, “Submission to the United Nations Special Rapporteur on violence against women’s thematic report on rape as a grave and systematic human rights violation and gender-based violence against women.” https://www.ohchr.org/sites/default/files/Documents/Issues/Women/SR/RapeReport/Others/013-general.pdf 

19. R.P.B v. the Philippines, Communication No. 34/2011, Committee on the Elimination of Discrimination against Women. February 2014. Para 8.10. https://digitallibrary.un.org/record/773056?ln=e

20. General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19 (1992), Committee on the Elimination of Discrimination against Women, July 2017. Para A(29)(e). https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-recommendation-no-35-2017-gender-based

21. Human Rights Now, 10-country research study on “Punishment for sex crimes: What's going on in the world?” 2018. http://hrn.or.jp/2019_sex_crime_comparison/#sec01

22. M.C. v. Bulgaria, Appl. No. 39272/98, Council of Europe: European Court of Human Rights. December 3, 2003. Para 164-166. https://www.coe.int/t/dg2/equality/domesticviolencecampaign/resources/M.C.v.BULGARIA_en.asp

23. Council of Europe, “What is the Istanbul Convention? Who is it for? Why is it important?” https://ec.europa.eu/justice/saynostopvaw/downloads/materials/pdf/istanbul-convention-leaflet-online.pdf

24. Council of Europe Convention on preventing and combating violence against women and domestic violence (CETS No. 210). 2011. Article 36(1)(a). https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=210

25. Prosecutor v. Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic, Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, June 12, 2002. Para 129. https://www.icty.org/x/cases/kunarac/acjug/en/

26. Emma Batha, Thomson Reuters Foundation, “Rape conviction rates rise 75% in Sweden after change in the law.” https://www.reuters.com/article/us-sweden-crime-rape-law-trfn-idUSKBN23T2R3

27. Dr. Eithne Dowds, The Modern Law Review 83(1), “Towards a Contextual Definition of Rape: Consent, Coercion and Constructive Force.” 2019. https://pureadmin.qub.ac.uk/ws/portalfiles/portal/167466033/Towards_a_Contextual_Definition_of_Rape.pdf 

28. Camilla Koljonen, “How is consent-based legislation on rape providing more protection for individuals in comparison to coercion-based legislation? Comparison between Finland and Sweden.” Maastricht University. July 15, 2019. https://www.researchgate.net/publication/335397291_How_is_consent-based_legislation_on_rape_providing_more_protection_for_individuals_in_comparison_to_coercion-based_legislation_-_Comparison_between_Finland_and_Sweden

29. Dubravka Simonovic, “A framework for legislation on rape (Model Rape Law) : report of the Special Rapporteur on Violence against Women, Its Causes and Consequences.” 2021. Para IV(D). https://digitallibrary.un.org/record/3929055?ln=en

30. Submission of Interights to the European Court of Human Rights in the case of M.C. v Bulgaria, Appl. No. 39272/98, Council of Europe: European Court of Human Rights. December 3, 2003. Para 12. 

31. Rape Crisis England and Wales, “The 5 Fs: fight, flight, freeze, flop and friend.” https://rapecrisis.org.uk/get-help/tools-for-victims-and-survivors/understanding-your-response/fight-or-flight/ 

32. James W. Hopper, The Washington Post, “Why many rape victims don’t fight or yell.” June 23, 2015. https://www.washingtonpost.com/news/grade-point/wp/2015/06/23/why-many-rape-victims-dont-fight-or-yell/ 

33. Human Rights Now Webinar, “Seeking the Realization of Yes Means Yes! International Women's Day Event.” March 9, 2022. https://humanrightsnow.hatenablog.com/entry/20220309eventreport#f-ce760847

34. Human Rights Now Webinar, “Is this enough? Questioning the current status of revisions to criminal sexual offenses: Articles 177 and 178 of the Penal Code.” April 9, 2022. https://humanrightsnow.hatenablog.com/entry/20220409eventreport