VIOLENCE AGAINST WOMEN | ASIA | ADVOCACY & POLICY | CULTURE
Under the Surface: The Hidden Reality of Rape in Japan, Part I
WORDS BY RICCARDO CHIARAMONDIA | R.CHIARA@THEIWI.ORG | 7 SEPTEMBER 2024
Under the Surface: The Hidden Reality of Rape in Japan, Part II
When coming across reports on the number of rape cases in Japan the country may seem like a forerunner in the guarantee of safety against sexual violence(i). As will be seen in this article, this conception is widely superficial and incorrect.
Good wife, wise mother
In the second half of the nineteenth century, Japan experienced a major sociocultural change, marked by the end of isolationist policies and the restoration of the Empire (Meiji Restoration) in 1868 after centuries of feudalism. Following this revolution, with the desire to maintain independence from the Western world, a strong industrialization and a renewal of education based on European and U.S. models were encouraged. These processes were based on the paradox of maintaining political independence based on the assimilation of Western culture. In this transitional climate in 1907 the Criminal Code was drafted where instances from Japanese feudal ethics and European criminal codes(ii) coexisted. Over the years the Criminal Code underwent major changes to modernize laws based on historical compromise and rooted in a different ethical-political system. Articles 177 and 178 regulating rape and quasi-rape did not change until 2017.
Before analyzing the law, it is necessary to point out that one of the pivotal elements on which this new Japan was built was the patriarchal-type family, a metaphor for the state where the emperor is the father of all his citizens. Women were limited to the role of deity of the household, and on their actions depended not only the stability of the home, but of the nation: in fact, the thinking was that if “the home is unhappy, then national prosperity cannot be expected(iii).” This conception derives from the ‘Ie’ family model having as its basis the idea of “good wife, wise mother(iv).” In this context, the creation of Articles 177 and 178 is not so much aimed at protecting women but rather at defending the concept of family and honor(v).
Articles 177 and 178
For more than a century only vaginal penetrations achieved through assault or intimidation following a proven refusal - unless the victim was under the age of thirteen, the age of consent - could be classified as sexual assault. When the vague concept of assault or intimidation was not substantiated, and the perpetrator abused states of unconsciousness - even if they were induced by him - the offense was considered a quasi-rape. The latter represents an unfortunate distinction with a choice of language designed to downplay the magnitude of the act. Finally, rape and quasi-rape - the minimum penalty for which was three years - had to be reported by the victim to be prosecuted. The problems arising from this conception of sexual violence are manifold: everything that does not involve vaginal penetration turns out to be permissible, “assault or intimidation” are impossible-to-define and limiting concepts, and the need to prove one's denial toward the act suffered is often impossible. It is necessary to focus on the last two points. The conception of rape based on “assault or intimidation” carries with it two major errors: the idea that only strangers commit the violence, and the disregard for the tonic immobility that affects many of the victims. In 2019, according to data from the Gender Equality Bureau Cabinet Office, only 10% of rape cases in Japan were perpetrated by a complete stranger(vi). Hence, many perpetrators are part of the victim's daily routine and/or exploit agreed-upon encounter situations. In terms of tonic immobility, in accordance with AGOS studies 70% of women exhibit significant immobility during sexual assault(vii). Although the violent component, physical and psychological, is evident in both cases, it is not perpetrated through explicit acts of “assault or intimidation” according to the Japanese law, having the victim agreed to the encounter or not reacting to the assault.
Regarding the need to demonstrate explicit refusal, the situation appears even more controversial. One of the most explanatory cases is that of journalist Itō Shiori. Itō, after meeting a colleague in a bar and being drugged by him, was taken unconscious to a hotel room where she was raped. Although the facility's cameras captured the scene of her fainted and being carried on the attacker’s shoulders, the complaint was dismissed because it could not be determined whether inside the room - referred to as a black box due to the lack of images - she had expressed dissent. It must also be pointed out how not saying “no” is not the same as saying “yes”, and how the victim is often in a position where expressing dissent - because of the psychological pressure and power dynamics often present, such as work ties - may appear to be the least fruitful solution. Some court cases in which refusal could not be demonstrated are analyzed in their dynamics in greater depth in Black Box(viii), a book published by Itō Shiori in 2017 about her own experience.
The publication of Black Box and Itō's advocacy work on the issue of sexual violence - having become one of the faces of the #MeToo movement in Japan - brought international attention to the trial, as demonstrated in the 2018 documentary Japan Secret Shame made by the BBC. In 2019, the trial concluded with Itō Shiori's victory. Also, in 2017, Articles 177 and 178 were amended for the first time. As mentioned in the introduction, Japan is a state historically prone to Western pressure and to change its customs accordingly: the internationalization of the Itō case and the shift from its dismissal to the rapist’s conviction and change in laws after over a century does not seem to be a coincidence.
Limited improvements
The first amendment to the rape articles, as mentioned, occurred in 2017 and another was made in 2023. The results are the recognition of anal sex and oral sex as possible acts of sexual assault, the increase of the minimum sentence to five years, the possibility of prosecution even without the victim's complaint, the raising of the age of consent to sixteen, and the recognition of eight cases in which it is not necessary to prove lack of consent on the part of the victim. This last point, however, represents a contradiction in that, unlike the new text of the article, rape is not recognized as every nonconsensual act, but only as some nonconsensual acts.
Legislation, however, is only part of the problem; in fact, it is more deeply rooted in the country's culture. In Black Box Itō explains how in many cases reporting is problematic because of the mistreatment perpetrated by the police and their attempts to discourage reporting. The low propensity to report is highlighted in 2022 by NHK's data: only 10% of victims report the acts; of these cases, however, 29% are not recorded by the police and, of these, 34% are not sent to prosecutors(ix). Reading the global data on the rate of rape by state, Japan often appears with a low incidence, which could be due to such underreporting. This attitude from authorities is, moreover, an example of the rape myth that is strongly ingrained in Japanese culture, as will be seen in the next article which includes a case study on the pornography industry.
i.See: Concha, R. (2023). Gender-egalitarianism and the construction of official rape rates. International Criminology, 3(1), 38-51; World Population Review. (2024). Rape Statistic by Country. Retrieved from https://worldpopulationreview.com/country-rankings/rape-statistics-by-country.
ii.Röhl, W. (Ed.). (2005). History of Law in Japan since 1868 (Vol. 12). Leiden, Germany: Brill.
iii.Kazue, M., & Gregory, M. S. (1994). Images of the Family in Meiji Periodicals: The Paradox Underlying the Emergence of the “Home.” U.S.-Japan Women’s Journal. English Supplement, 7, p. 60.
iv.Translation of ryōsai kenbo. See: Fujimura-Fanselow, K. (1991). The Japanese Ideology of ‘Good Wives and Wise Mothers’”: Trends in Contemporary Research. Gender & History, 3(3), 345-349; Kazue, M. & Gregory, M. S. (1994).
v.Truchan, L. (2023). An Absent" No" Is Not a" Yes": A Legal Analysis of Consent in Japan's Amended Penal Code and International Rape Legislation Standards. U. Pa. Asian L. Rev., 19, 298-371.
vi.Gender Equality Bureau Cabinet Office. (2020). 2020 White Paper on Gender Equality as reported in Truchan, L. (2023).
vii. Möller, A.,Söndergaard, H.P. & Helström, L. (2017). Tonic immobility during sexual assault – a common reaction predicting post-traumatic stress disorder and severe depression. Acta Obstet Gynecol Scand, 96, 932–938
viii.Itō, S. (2017). Black Box. London, England: Tilted Axis
ix.Data reported in Johnson, D. T. (2024). Is rape a crime in Japan? International Journal of Asian Studies, 1–16.