Holding court on warped ideas of sex and love


LOVESICK JAPAN: Sex, Marriage, Romance and Law, by Mark D. West. Cornell University Press, 2011, 272 pp., $29.95 (hardcover)

Nobody else explores the law in Japan quite like Mark West, bringing it to life and close to home. “Lovesick Japan” is an entertaining and insightful examination of the courts, pulling eye-popping gems from judges’ opinions that speak volumes about their proclivity for peeping, prodding, moralizing and otherwise creeping into the bedroom in adjudicating marriage, divorce, rape, stalking and pornography. He draws on sex surveys and bizarre rulings to expose judges’ warped version of love and their uncommon common sense.

But there is much more to “Lovesick Japan” than a series of absurd rulings; here we are shown how sermonizing judges try to shape society in their own image. It is depressing that these highly educated men are so clueless and yet have so much power over the fate of so many Japanese. Clearly, the judges see themselves as arbiters of emotions and insist that rules trump passion. Often they go well beyond the law to decide cases based on nonfactual, subjective elements, sometimes with unfortunate consequences.

Judges actively promote a staid view of love, sex and marriage that intrudes into the privacy of the bedroom, deciding for example what constitutes normal sex down to the thrust count. Judges are mostly middle-aged men representing the Establishment, so it is not surprising to learn that “normal” sex is male-dominated, dispassionate and reserved. We learn that a woman-on-top is definitely deviant in the eyes of the court and so is a strong libido. Marital rape? According to the patriarchal courts, this has only happened three times since World War II. Statutory rape? A man who was charged with raping a 14-year-old in his car was found not guilty apparently because she had previously kissed someone, had taken a bath before going for a ride with him and didn’t shout or resist strongly enough.

Love matters a great deal in suicide and murder cases. Judges believe they can determine if love was a factor because “it is accompanied by suffering, pain, and tragedy.” Only 2 percent of Japan’s murderers get the death penalty and judges take many factors into account, but “In cases in which love is an issue, the defendant tends to live if he is in love and die if he is not.” Killers take note.

When it comes to stalking, West writes, “If the court is persuaded that a harasser is not acting on feelings of love or love-fueled revenge, he is not stalking.” So stalking is not about the emotional distress of the victim; rather it focuses on whether the stalker exhibits the painful feelings the court associates with love. There is one case of a jilted lover who distributed naked pictures of his ex-girlfriend to her neighbors. He defended himself against stalking charges by arguing that he was not trying to “satisfy his feelings of love,” but rather “to make sure he had a way of communicating in order to end their relationship.” The court did not buy it, finding him guilty because it somehow divined love in his actions.

In one case involving termination of a relationship, apparently cancellation fees applied. The defendant basically argued he shouldn’t have to pay because his girlfriend was promiscuous, pointing out to the court that she worked as a hostess, allowed him to have sex when menstruating, and in one session enjoyed sex on top for 90 minutes! The court found this latter allegation beyond belief, apparently not the duration, and awarded her a large termination fee, arguing that he had trampled on her “dignity rights.” Or, as West puts it, “because Hiroya, the jerk, violated the rules of relationships.” Disparaging her in court and acting like a condescending and stingy cad made him liable.

On the hallowed institution of marriage West asserts, “Marriage usually has neither love nor sex; judges raise the ideal of love in marriage and proclaim its importance, but virtually no one in the cases achieves it. Instead, married life is best conceptualized as the fulfillment of a contract.” Oddly enough, the court sometimes enforces this contract against the wishes of estranged couples, ordering them to cohabit and work it out. For women who are economically dependent on their husbands, the courts’ preference for mandating continuation of unhappy marriages is like a life sentence with no appeal.

But one woman who complained of a sexless marriage was awarded damages and a divorce, although the court defended the husband, saying that “he was a nervous Christian with no sexual experience and shame over his penis.”

The court also was sympathetic to one woman who complained of being forced to use a vibrator and another who was made to wear shoes in bed; divorce is also granted for deviance, but not necessarily for adultery.

After a husband found out he was a cuckold, his wife asked for a divorce, claiming, inter alia, it was the best sex she ever had. He refused and sued for a cohabitation order and the court opined that her adultery did not constitute a rational reason for her to abandon her marital duties. So the court decided a contract is a contract and they must love and live unhappily together ever after.

Jeff Kingston is director of Asian Studies, Temple University Japan.