In one of the most high-profile cases in Japan of the #MeToo movement, the Tokyo District Court ruled last week that Noriyuki Yamaguchi, a former journalist at TBS TV, must pay ¥3.3 million in damages to freelance journalist Shiori Ito, after she had filed a lawsuit accusing him of sexually assaulting her at a Tokyo hotel in 2015.
Ito’s victory was widely reported by Japanese media, but it also captured global attention as victims in Japan rarely go public with allegations of sexual assault and win their legal battle. It marked an important milestone for women’s rights in Japan, but at the same time it revealed how this country is far behind much of the world in terms of protecting sex crime victims. While many countries have moved to introduce heavier penalties on such crimes in recent years, the criteria here for a conviction in a sex crime case remains onerous. Japan must work urgently to provide better legal support for sex crime victims.
Last week’s ruling ordered Yamaguchi to pay ¥3.3 million in damages to Ito, concluding that she had not consented to having sex as she had lost consciousness after a few drinks. The court also dismissed a countersuit filed by Yamaguchi, who was seeking ¥130 million in compensation from Ito, claiming the act was consensual and that her accusations damaged his social reputation. Prior to filing her lawsuit, Ito had reported the incident to the police, but prosecutors dropped the case, saying there was insufficient evidence.
It is not unusual to win a civil lawsuit after prosecutors have chosen not to pursue a criminal case. Under the Japanese legal system, a lack of consent is not enough to bring a charge of rape, and victims have to present hard evidence of “violence and intimidation” by their assailants.
Rape is often described by victims as “the killing of their soul.” During rape, victims are terrified and feel powerless. Under such circumstances, it is difficult for them to fight back or escape. The fact that sex crimes are often committed behind closed doors by acquaintances makes it even harder to prove that they were done forcibly or against the victim’s will.
Without sufficient evidence, police are unable to send cases to prosecutors. Fearful of retaliation, many victims also refrain from reporting such crimes to the police, choosing instead to remain silent.
According to a 2017 survey by the Cabinet Office, 7.8 percent of women and 1.5 percent of men have had an experience involving forced sexual intercourse. However, only 32.7 percent of reported cases have led to an indictment.
2017 saw revisions of Japan’s outdated sex crime laws first enacted in 1907, broadening the definition of rape, lengthening prison terms and making prosecution possible even if those who claim they are victims don’t file a formal complaint. But the first revisions to sex crime laws in 110 years still left many issues unaddressed. For instance, presenting proof of “violence and intimidation” remains a prerequisite for convicting sex offenders.
In many other countries, including Sweden, Finland, Britain, Canada and Germany, sex without consent is considered rape, and victims do not have to prove violence or threats by offenders.
In a March 2019 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 it could not be proven that it was impossible for her to resist his sexual assaults. The victim had been sexually abused by her father since she was in junior high school.
This case also reminded people of the importance of the age of consent. It is illegal for an adult to engage in sexual activity with a person below this age regardless of whether consent has been granted. In Canada, Britain and Finland, the age of consent is 16, whereas it is 15 in France and Sweden. However, in Japan, the age of consent is just 13. This must be raised to at least 15 or 16 in order to protect children here.
To protect victims, the filming or photographing of sex crimes must also be banned. Though some municipal governments have ordinances prohibiting camera voyeurism in public areas, there is no law banning such acts in a private space. Because of this, prosecutors cannot force sex crime offenders to hand over photos or videos of such acts unless a court order is granted, and victims have to live with fear that such material could be leaked into cyberspace.
When the 2017 revision of the Penal Code was passed, a supplementary provision stipulated that the revision would be revisited three years after taking effect. That milestone will arrive next year. As 2020 approaches, we must learn from the court rulings of 2019 and revise the law to better protect Japan’s sex crime victims.