It surely isn’t very often that elite Japanese bureaucrats hear the words to the national anthem quoted at them — by a foreigner. Earlier this year, Australian national Catherine Fisher says she pulled the words of “Kimigayo” from her head during a frustrating meeting with officials from the ministries of defense, justice and foreign affairs.
“May my Lord’s reign
Last a thousand, 8,000 generations
Until the pebbles
Grow into boulders.”
Her point was to warn them that her struggle, though relatively powerless, isn’t going away, and that they ignore it at their peril. Not unexpectedly, the message fell on bureaucratic deaf ears, she recalls. “They pulled a copy of the Status of Forces Agreement out and asked me to read Article 17.”
SOFA is the legal framework agreed between Tokyo and Washington governing the stationing of U.S. military personnel in this country. Article 17 gives U.S. forces the primary right to exercise jurisdiction over their own members for crimes committed here while “on duty.” Japanese authorities have legal jurisdiction over crimes committed off-duty, at least on paper.
Fisher, who for years appeared in the media under the pseudonym Jane, has been here many times before. When off-duty U.S. serviceman Bloke T. Deans raped her near the American naval base in Yokosuka, Kanagawa Prefecture, on April 6, 2002, she expected him to be arrested and charged. Instead, Japanese police traced Deans to the USS Kitty Hawk, where he was stationed, but came away empty-handed, citing a lack of evidence.
Deans left Japan soon after and has never returned. The U.S. Navy subsequently reportedly gave him an honorable discharge, and he went back to his life in Milwaukee, though not, as we shall see, to complete anonymity. In November 2004 a Tokyo court ordered him to pay ¥3 million after Fisher filed and won a civil suit against him, but there was no jurisdictional authority to force payment.
Fisher persisted, going to court again to claim for compensation under SOFA rules, but she was told that the two-year statute of limitations on her case had run out. Japan’s government subsequently awarded her ¥3 million in compensation, “in token of its sympathy,” explains Masaru Sato, director of the Foreign Ministry’s International Press Division.
Known in Japanese as mimaikin, the sympathy payment (from the Ministry of Defense) “is based on a Cabinet decision regarding damage to those who suffer as a result of acts by members of U.S. forces,” he adds. Mimaikin is usually the term referred to when perpetrators of crimes pay their victims out-of-court settlements. One possible translation is “blood money.”
That might be rationally seen as tacit acceptance that Deans is guilty of a crime, but this is not necessarily the case, concludes Sato. “The concerned authorities appropriately dealt with (the case) based on SOFA and laws and regulations of Japan,” he says. “The Yokosuka Branch of the District Public Prosecutors’ Office made a disposition to the person in question not to institute a public action.”
So why pay compensation? A defense ministry spokesman said he could not comment, but added, “It’s probably better to ask the U.S. side about this since this was a crime by one of their members.”
At the U.S. Embassy, a spokesman said that the case was closed. “Our understanding is that Japanese prosecutors investigated this case with the U.S. Navy and there was insufficient evidence to prosecute Deans.”
The story of Fisher’s rape, her attacker’s escape and the Kafkaesque legal runaround exposed by a particularly tenacious victim has hardened suspicions that the SOFA agreement is, in effect, a get-out-of-jail-free card for guilty American service personnel.
While both governments say publicly that Japan has prime judicial rights over all off-duty crimes by U.S. soldiers, “In the majority of crimes committed by U.S. military servicemen here in Japan since the early 1950s, the Japanese government ceded the right to prosecute these crimes to the U.S.,” says military researcher Shoji Niihara.
Niihara says arrangements governing U.S. forces in Japan have become the template for other SOFA arrangements around the world, quoting Lt. Col. Dale Sonnenberg, the chief of international law for U.S. Forces Japan.
In “The Handbook of The Law of Visiting Forces,” Sonnenberg wrote: “Such provisions (i.e., advance waiver of jurisdiction, pretrial custody remaining with the U.S., and specification of due process right in addition to those set out in Art. VII of the NATO SOFA) thus became the standard for ‘modern’ SOFAs.” Tokyo entered into an informal agreement to waive its primary right to exercise jurisdiction except in cases of “special importance” to Japan, and “Japan has faithfully carried out this understanding,” he added.
The issue of the legal status of U.S. military personnel has been a key area of disagreement between Washington and the government of Iraq, points out Gavan McCormack, a veteran Japan watcher and currently professor emeritus at the Australian National University. “One of the reasons for the currently ongoing ‘withdrawal’ from Iraq was that the government of that country would not allow, or dream of allowing, any such privilege to U.S. forces in that country. So a demand in Japan should be: Give us at least Iraqi terms of SOFA!”
The exact nature of the SOFA deal has come under more scrutiny since an agreement signed last November by President Barack Obama and Australian Prime Minister Julia Gillard that will put 2,500 U.S. soldiers in Australia — “China’s strategic backyard” — by 2017. The first contingent of 180 Marines arrived in Darwin last week, almost 10 years to the day since Fisher was raped, and they will be deployed close to where she grew up.
The lessons have not been lost on Australian reporters, who have taken a renewed interest in her case. At least one major TV network plans a documentary on what happened to her.
“The Australian government needs to discuss my case,” she says.
After so many encounters with journalists, she knows the SOFA agreement off by heart. “It says that all U.S. servicemen must abide by the laws of Japan. So I ask the government: Is raping someone and fleeing the country ‘abiding by the laws of Japan?’ “
Fisher has been tracking Deans in the U.S. for years in the hope that he can be brought back to Japan. Since he returned home, he has had a series of encounters with the law, including a class A misdemeanor conviction in Milwaukee for neglecting a child last year. Not for the first time, Fisher took that information to the Japanese government.
“They’ve been saying that they can’t do anything because they don’t know where he is. So I told them: ‘Now you know where he is.’ I gave them his address and the name of the presiding U.S. judge in his case.”
According to Fisher, their response was, “It’s not our responsibility.” When she asked them to translate and send the Japanese civic court conviction for rape, they replied that they “couldn’t afford it.”
During her encounters with officialdom, Fisher reels off a list of crimes committed by U.S. personnel after they leave Japan.
Kendrick Ledet, one of the three servicemen involved in the horrific abduction and rape of an Okinawa schoolgirl in 1995, returned home to rape and kill an American woman. He took his own life in her apartment.
Michael Brown, a U.S. serviceman convicted of an infamous case of indecent assault against a Filipina bartender on Okinawa in 2004, was arrested a year later for kidnapping a young Vietnamese-American high school student in West Virginia.
Anthony Sowell, dubbed the “Cleveland Strangler” by the media, was convicted last year of raping and murdering 11 women and burying them in his Cleveland home. During seven years as a marine, including a final posting on Okinawa, he had received a string of awards, including a Certificate of Commendation and a Good Conduct Medal. “Who knows what he was up to on Okinawa,” says Fisher.
“I said to Japan’s government: If Deans does something and his victims are not protected, whose responsibility is this going to be? People are going to say, ‘Why didn’t the Japanese government do something about this?’ “
Fisher is hoping to pursue her attacker through the U.S. courts. Legally, her chances are slim. Whatever happens, she says she will continue to fight.
“There is no amount of money whatsoever that will be able to repay myself and my family for what has occurred over the last 10 years. But if I could win this case, it would be ground-breaking. So I have to keep going.”
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