A recent series of court rulings on sex crimes that cleared the alleged offenders has raised questions about the legal provisions that critics say create an onerous burden for establishing the crime of forced sexual intercourse. In a March ruling by the Okazaki branch of the Nagoya District Court, a man in Aichi Prefecture accused of sexually assaulting his 19-year-old daughter in 2017 was found not guilty because, even though the intercourse was against the daughter’s will, it could not be proven that it was impossible for her to resist.

Under the Penal Code, the lack of a victim’s consent to intercourse alone does not establish the crime of forced or quasi-forced sexual intercourse. It needs to be proven that the victim suffered violence or threat by the offender that made it extremely difficult to resist the intercourse. In court, it is often contested how strongly the victim resisted.

In the Aichi case, the court accepted the prosecutors’ charge that the daughter had been sexually abused by the father since she was in junior high school. The court determined that the intercourse for which the father was indicted — twice in 2017 — took place without the consent of the daughter, who had been psychologically deprived of the ability to show intent or willingness to resist.

In evaluating whether it was impossible for the daughter to resist the intercourse, however, the court said it could not be proven that she was so fearful of violence at the hands of her father that she could not resist him because the violence she suffered when she had resisted earlier was not enough to instill fear in her. It could not be established, the court said, that she was under such strong control that she had no choice but to obey him. The prosecutors, who had sought 10 years in prison for the father, have appealed the ruling.

In another case involving a charge of sexual assault, a man was cleared in March in a lay judge trial at the Hamamatsu branch of the Shizuoka District Court. The prosecutors charged that it was clear that violence committed by the accused made it extremely difficult for the victim to resist, but the presiding judge ruled that she did not resist in a way that was clear for the accused to see. Earlier this year, the Kurume branch of the Fukuoka District Court cleared a company executive of sexually assaulting a drunken woman on the grounds that he “falsely understood” that the woman had consented to intercourse.

Victims of sex crimes, their supporters and some experts are stepping forward to criticize these rulings for failing to understand the reality of sexual abuse and charge the legal system with setting the hurdle too high for recognizing victim resistance. In the last week, a Tokyo-based group of sex crime victims and others submitted a petition to Justice Minister Takashi Yamashita calling for either an amendment to the Penal Code or a review of the way it is implemented. Members of the group reportedly said of the March ruling on the Aichi case that it is not necessarily common for rape victims to physically resist because they may become unable to move out of fear or confusion. They called for amending the current provision that the crime of forced sexual intercourse cannot be established unless it is proven the victim was rendered unable to resist due to violence or threat — and creating a new provision that penalizes a person for having intercourse without the other’s consent, as in some other countries.

Penal Code provisions on sex crimes were tightened in 2017 for the first time in 110 years. The minimum prison term for sexual assaults was raised and men were added as potential victims of sex crimes, while a provision requiring a victim to file a criminal accusation before a suspect can be indicted was removed. The amendment also created a new crime in which parents and other guardians can be penalized for having sexual intercourse with anyone under their care below the age of 18 regardless of violence or the threat of violence. When the amendment was discussed, there were calls to penalize all sexual intercourse without mutual consent, but no consensus was reached. Officials and experts take a cautious view toward making that an outright crime on the grounds that it is often practically difficult to determine whether or not there was consent.

Last year, the Supreme Court distributed to courts across the country a set of research material featuring psychiatrists’ lectures on issues surrounding sex crime victims and question-and-answer sessions on the topic between experts and judges. Some of the explanations by experts echoed sex crime victims in saying that some victims become unable to move out of fear or cannot remember the attack they suffered due to the shock of sexual assault. Some victims even blame themselves for not resisting — and do not report the assault to police. There is persistent criticism that some court rulings on sex crime cases do not sufficiently take the victims’ psychological state into account.

Whether that criticism is valid, a supplementary clause to the 2017 Penal Code amendment calls for a review by around 2020 to assess the situation and, if necessary, review the amended provisions. It should merit a public discussion as to whether the current provisions and their implementation deal adequately with the damage inflicted on victims of sex crimes.

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