Last October the Supreme Court of Japan unanimously dismissed a young woman’s final appeal of an Osaka High Court ruling that had found no illegality in her father’s self-admitted act of suddenly touching her breast for a few seconds to “measure her sexual growth” when she was 11 years old.
In November 2005 and May 2006, respectively, Judge Hiromi Morita of the Kyoto District Court and Presiding Judge Seijiro Shimada of the Osaka High Court had dismissed the daughter’s appeals mainly on the grounds that the father had a right to touch his child’s breast insofar as he fulfilled the parental duty of taking care of his child sufficiently to receive the child’s deep trust. (Their judgments were analyzed in a Sept. 15, 2006, article in the Opinion Section of The Japan Times.)
The daughter’s final appeal to the Supreme Court was based mainly on the argument that the lower courts had failed to see the illegality of her father’s act and that this failure violated integral provisions of human rights contained in Article 13 and 14 of the Japanese Constitute, which stipulate, in part, that every person will be respected as an individual and considered equal under the law.
The Supreme Court dismissed the final appeal because of procedural shortcomings in the appellant’s writing of the appeal. The decision said: “According to Article 312 of the Civil Procedure Law, final appeal to the Supreme Court is permitted only (1) when lower court rulings misinterpret or violate the Constitution; or (2) when procedures at the previous trial involved illegality.
“Although the final appeal letter attempts to argue that the (Osaka) High Court ruling violates the Constitution, the letter essentially says only that the ruling misinterprets certain facts concerning the case, or violates a law rather than the Constitution. Therefore, this final appeal cannot be permitted and is thus dismissed (author’s translation with some clarifications).”
Attorney Hiromichi Endo (a former Tohoku University professor of the Constitution), Chuo University law professor Yasutaka Abe and former Fukuoka High Court director Masuo Inoki agree that the Supreme Court uses the same reasons to dismiss most final appeals to avoid explaining the real reasons (except for appeals that receive wide media attention) and thus to save time and cost.
According to “The Annual Report of Judicial Statistics (Shiho Tokei Nenpo): Civil and Administrative Volume,” issued by the secretariat general of the Supreme Court of Japan, the Supreme Court dismissed 95 percent of all civil appeals brought to it in 2005 by citing the reasons mentioned above.
By deploying this “usual” technique for dismissal, the Supreme Court confirmed the father’s “right” (as endorsed by the lower courts) to touch his daughter’s breast, thus refusing to enforce the human rights provisions of the Constitution.
According to a lawyer with the Osaka Bar Association who has represented a number of children who have suffered incestuous abuse by their fathers, and a social worker who has treated many similar cases at the Child Abuse Prevention Unit of the Central Child Welfare Office in Kanagawa Prefecture, the vast majority of these cases are not brought to court primarily because the victim is often blamed in court.
Neither data on the incidence of such abuse nor data on the conviction rate is yet available due to the extremely scarce amount of research conducted on this subject in Japan.
For example, with regard to the above civil case, the ruling given by Judge Morita at Kyoto District Court entirely ignores several expert opinions on the posttraumatic stress suffered by the plaintiff, and further states that “as the plaintiff started to believe firmly in gender equality, she started to assume that her own problems were a result of the defendant’s act.”
The Osaka High Court ruling, written by Judge Akiyo Fukui under the direction of the presiding judge, suggests that the appellant must be psychologically pathological to believe that her father’s “socially accepted” act of touching her breast is illegal and would cause psychological damage.
It appears that both of these dismissals, now confirmed by the Supreme Court, are based on the logic that this kind of incident takes place so frequently in Japan that finding the defendant guilty would result in judicial recognition of the vast nonenforcement of the law concerning such abuse and would thus threaten the existing Japanese judicial “order” and the “rule of law.”
Therefore, by labeling the victim pathological and by indicating that the victim is herself responsible for any psychic injury caused by this incestuous abuse, the rulings have the effect of disciplining and punishing the victim as a person for trying to threaten the existing judicial “order.”
Law ought to concern itself not only with order, rule and discipline, but also, more importantly, with the equality of human dignity and human rights as well as anti-domination, so that incestuous abuse of a child — psychologically, one of the most devastating human rights violations — can be remedied.
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