Written and Translated by Ayşe Haruka Açıkbaş Oshima
Trigger warning: This article discusses legislations concerning sexual abuse and violence.
“So if I, as an around-50-year-old, were to have sex with a 14-year-old, I would get arrested even if there was consent. This is wrong.”
This is what Hiranao Honda (57 years old), a member of the House of Representatives said during a meeting for Sex Crime Law Revision Working Team held by his party, the Constitutional Democratic Party. The meeting was a “study session” for the party members to learn about and discuss the age of consent in Japan, and Honda said this while arguing with the participating scholars who were demanding the age of consent be raised from 13 to 16. As this comment was followed by public outrage, there is now a renewed focus on the age of consent and definition of sexual abuse and violence by the Japanese laws.
I sat down and interviewed two academics on separate occasions to discuss what it means to have the “capacity to consent”, why age matters and what an effective protection of the youth would require. First I interviewed Prof. Mana Shimaoka (Osaka Graduate School of Law and Politics Department of Law and Political Science), who specializes in the Japanese Penal Code and its intersection with gender issues. She was part of the study session with CDP and as such one of the main correspondents regarding this recent controversy.
I then interviewed Dr. Hoko Horii (Van Vollenhoven Institute for Law, Governance and Society, Leiden University (Netherlands) / Kobe University (Japan) ), who specializes in sociolegal studies and does comparative studies on child marriage and age of consent in multiple countries including Japan, Netherlands and Indonesia.
This article goes through the basic facts about the current laws in Japan regarding sex crimes against the youth while incorporating the interviewees’ insights.
Age of consent is the age from which someone is deemed capable of consenting to sexual activity and their consent is valid in law. Any child under this age of consent involved in sexual act is regarded as a victim of sexual abuse and/or rape. Its purpose is to protect an underage person from sexual abuse and from the consequences of early sexual activity that may infringe upon their rights and affect their development.
Sexual crimes against the youth in Japan is regulated by not just one but multiple bodies of laws:
(1) the Penal Code (刑法) which sets the age of consent at 13 and defines punishable forced sexual acts in separate categories of “indecent acts” and “sexual intercourse” (see notes for the fully translated Articles),
(2) the Child Welfare Act (児童福祉法) which prohibits “causing a child to commit obscene acts” (Article 34, no. 6) and finally,
(3) the Prefectural/Municipal Regulations for Nurturing and Protecting the Youth (青少年保護育成条例、淫行禁止規定), which includes article(s) prohibiting “sexual misconduct” involving minors.
When a case is taken to the court, the judges take all of these laws into consideration to decide on conviction or acquittal, and the amount of punishment. If the victim is below the age of 13, there is no questioning on the demonstration of assault and intimidation, it is by default forced and therefore punishable as stated by the Articles 176 and 177. The last two include all minors (any youth under the age of 18, including those older than 13), but punishments are lighter.
In 2017, the Penal Code articles concerning sex crimes were revised for the first time since their stipulation in 1904, more than a century ago during the Meiji era. Before the revision in 2017, the Article 177 (then titled the “Rape Law”) stipulated, uninterrupted for 113 years:
Rape – A person who, through assault or intimidation, forcibly commits sexual intercourse with a female of not less than thirteen years of age commits the crime of rape and shall be punished by imprisonment with work for a definite term of not less than 3 years. The same shall apply to a person who commits sexual intercourse with a female under thirteen years of age.
After the revision and as of July 2021, the renamed article states (as “Forced Sexual Intercourse”):
Forced Sexual Intercourse – A person who, through assault or intimidation, forcibly commits sexual intercourse, anal or oral sexual intercourse(hereby referred to as sexual intercourse) with a person of not less than thirteen years of age commits the crime of rape and shall be punished by imprisonment with work for a definite term of not less than 5 years. The same shall apply to a person who commits sexual intercourse with a child under thirteen years of age.
As it can be seen, the title was changed from the former Japanese word that had a gender-specific connotation, along with the potential victim being described in a gender-neutral way. More sexual acts that can be considered forced sexual intercourse were included and the minimum punishment was increased from 3 to 5 years. Though these were changes welcomed by many, the revision did not affect the age of consent, which now for the 117th year, remains at 13. To have a better grasp of that, it could be helpful to point out that at the age of 13 the average Japanese child is still in middle school, with one or two years away from completing their mandatory education.
“The Japanese legal system is comparatively static, quite conservative”, explains Dr. Horii. “Change is difficult, especially regarding issues that touch upon women’s rights, marriage or sexuality because it is sensitive to the conservative parties.” She underlines that the same can be said about the recent struggle to change the law regarding same-sex marriage as well as keeping the maiden name after marriage. “There are similar reasons behind the staticity of laws”, she concludes.
There are other criticisms of the current penal code apart from the age of consent. According to Spring (NPO), the first incorporated sexual assault survivors’ organization in Japan, there are many other issues that need to be addressed. These include the short statutes of limitation for forced sexual intercourse and forced indecent acts (10 and 7 years respectively), lack of sufficient regulation of cases with power imbalance and the coercion-based model that the Penal Code uses which requires proof for “assault and intimidation” to constitute an act as “forced” sexual act.
Coercion-based model and consent-based model are the two main models in legislation against rape and other forms of sexual violence, and as it can be seen by the wording of Articles 176 and 177, the Japanese Penal Code uses the coercion-based model. There has been an international shift to consent-based models upon criticisms by human rights and sexual assault survivors’ organizations, stating that the coercion-based model does not encompass the cases where force or coercion may not be present, but the victim is physically or mentally unable to consent.
“Japan was very late in the first place.” said Prof. Shimaoka, while looking back at this shift across the globe and the 2017 revision that left much to be addressed. She continued: “Across the globe, the movement to change the laws started around the 70s with a shift to (a focus on) infringement on self-autonomy. (Regarding the 2017 revision) I was expecting that Japan would also increase the age of consent and include more forms of sexual violence that is not exclusive to “assault and intimidation.” I was also expecting more (regulations) against cases with power imbalance but the revision only included custodians (Article 179), which is a very narrow category for perpetrators as it does not even include other relatives.”
When asked about the sociocultural context of 1907 Meiji Era that shaped these Articles, Prof. Shimaoka explained: “At the time, it was a patriarchal society where the ie (“house”), the patriarchal household was the most important societal unit, and the law was created only by men, who had the legal decision-making power. And until the revision in 2017, only women and girls could be victims as stated by “the Rape Law”.
She went onto explain how the wording and the common legal interpretation of this Article also reflects the patriarchal values of the time: “In the past, the common legal interpretation of this article required a harsh form of violence and threat (as per the wording ‘assault and intimidation’), along with the woman resisting desperately, to constitute the act a sexual assault.” Saying that this interpretation is still remnant in some parts, she made a statement on what this 1907 Penal Code truly intended to protect: “with the patriarchal assumptions of the time in mind, what the Rape Law intended to protect was not women’s human rights or their sexual autonomy (virtually inexistent concepts at the time) but it was the bloodline of the family. It was the patrilineal bloodline that was important, and somebody’s wife getting assaulted and compromising this bloodline was what was considered to be rape. Because it has its background from a time when wives who could not protect the ie were considered not worthy of protection and they had the duty to resist, this assessment of “resistance” by the judges was seen frequently in the case laws.”
…Needless to say, Japan has changed drastically over the 121 years since the Penal Code came into effect, with changes in the cultural and socioeconomic circumstances surrounding sexuality and marriage. However, as the recent controversial remark by parliament member Honda shows, there are still some problematic assumptions made by adults regarding young people and their sexuality. I asked the two professors why age plays a role in the ability to consent and why the number 13 is seen by many as too low, as once expressed with the hashtag #性的同意年齢の引き上げを求めます (“We demand for the age of consent to be raised”). To this, Prof. Shimaoka answered:
“To give legitimate consent, one needs the capacity to fully understand what is going on, requiring some amount of maturity. At the stage of middle school, though a child may have some knowledge (regarding sex), he or she is still vulnerable in many aspects. They are still getting their mandatory education and at the age when they are required to learn many things, they are prohibited from working and therefore not economically independent, requiring protection. …and (in Japan) while proper sex-ed is absent, a great amount of pornographic content is accessible through the social media and the internet. In such a country, children are constantly exposed to threats and therefore require protection.” She said that when all of these are taken into account, 13 is just too low.
Dr. Horii pointed to the evidence that supports the raising of age of consent:
“Most of the evidence come from trauma and damage that has been done to the victim of the sexual abuse, and the effect it has had on the victim later on in their life. Child victims of sexual violence do not immediately report the damage, but more and more studies have confirmed that these victims at later age report psychological damage and trauma.”, saying that this has led to the push for more protective measures to avoid such damage beforehand.
Naturally, one wonders what laws and measures other countries have. When I asked Dr. Horii about the different types of legislations seen internationally, she pointed to a diverse and evolving situation:
“Age of consent is different between countries and has changed over time, quite drastically. There has been an international trend of raising the age of consent in the last few decades. Netherlands has a context-specific regulation of age of consent, stating very specific, detailed conditions whereby children are assumed not being able to consent. For example, if a child is in a student-teacher relationship, a power imbalance is assumed and the age of consent is increased to 18. … There are also “close age gap exemptions” that are applied in some countries.”
With frequent references made to “international standards” from which Japan is lagging behind, I also asked her if there are such standards regarding the age of consent, and what we must take into account while making our laws. Dr. Horii referred to the Convention on the Rights of the Child (CRC), the UN convention on children’s rights and explained that “It does not set or state any age of consent, but it recognizes the “evolving capacity” of children. This is an abstract notion under the CRC, whereby the policymaking should respect the voice and choice of the child. But this is very difficult to do and is rarely applied. There is more focus on protection rather than choice and empowerment. So there is a dilemma between the need for protection and respect for choice and autonomy.”
Speaking of a dilemma or balance between empowerment and protection, is the Japanese youth empowered? That is, are they properly equipped with the correct knowledge beforehand to make informed decisions and navigate the world? Here, sex-education becomes the keyword. In Japan, sex-ed is restricted by the national guidelines from explicitly referring to “sexual acts that may lead to pregnancy” (the guideline also does not include teaching about contraceptives and abortion) and a hole is left in the understanding of sex as a form of interaction dependent on correct information and healthy communication, with risks and consequences.
Regarding sex-ed and its role in the protection and empowerment of the youth, Prof. Shimaoka reflected on her children’s experience in France compared to Japan:
“My children started getting sex-ed from a young age, in primary school. At that age, they do not feel shame about such things yet, which is better since they can learn with neutral feelings. In middle school, you may feel ashamed with the other boys and girls around you. In Japan, sex-ed is more like a class about reproductive biology. In developed nations, sex-ed is about establishing an equal relationship, and in a sense also teaching about gender. When such values are taught from early on, one learns how to have a romantic relationship with equality and no power imbalance. This not only prevents abuse by the victim’s avoidance, but also when they grow up and become older, they do not think of laying their hands on a middle schooler. These things are connected.”
Dr. Horii, with the aforementioned concept of the “evolving capacity” of a child in mind, had this to say:
“If there is good sex-ed that can inform the children of risks and consequences of sexual acts, maybe then you can say that can also change the assessments of their capacity. But, currently in Japan, unlike in Netherlands, sex-ed is still kind of officially not to be very explicit. There is a national guideline that prohibits “explicit” sex-ed.”
There are different studies that show that more open the communication about sex and reproductive health and contraception is, less unwanted pregnancy occurs. Open communication about sex creates a healthy environment for sexuality.”
Finally, I asked what we lack in our society and what we as individuals could do regarding this issue. Dr. Horii was critical of the lack of honest discussion surrounding youth and consent that confronts and challenges the false assumptions, and she called for a more informed approach when comparing Japan to other countries:
“(Hiranao Honda’s comments are) problematic in the sense that he assumes and does not challenge the concept of consent between a 14 year old and a 50 year old. There is a lack of detailed discussion on the concept of consent for children. And there are many things you should consider when you talk about the age of consent. I think you cannot simply say “It should be 16, because in other countries it is 16”. Age of consent being 16 in “developed countries”, should also be put in the context of other parts of their legal system, to be able discuss what a good age of consent would be to effectively protect a child who is unwillingly engaging in sexual acts that are harmful to them.”
Prof. Shimaoka, highlighting the general lack of awareness regarding human rights in Japan, pushes for a two-part strategy:
“We need two approaches at the same time: the top-down systemic change and the bottom-up raising of public awareness. An example for systemic change would be Prof. Mari Miura (referring to her work with her Parity Academy initiative), which aims to increase female seats in the parliament, with the expectation that it will lead to more gender-equal laws. For raising public awareness, one example is my work at pushing for mandatory online training about unconscious biases in university education.
“Everybody needs to do what they can. Society does not change easily by just one or few people. We can increase the number of those who reflect on such issues one by one and spread the movement.”
It is the job of the adults to protect the youth by designing the best measures that ensure they have a safe environment and crimes against them are fairly judged. If what is crucial to this is a productive discussion that directly challenges the current societal understanding of consent, shouldn’t listening to and amplifying the voices of the victims, survivors and experts be the first step?
So what do you think?
Do you think the age of consent should be raised, to what age and why?
Do you think the current coercion-based model of the Penal Code is effective at addressing sexual abuse and violence in general?
Do you think our laws and sex-ed are complementing each other effectively? Are the Japanese youth protected and empowered?
Let us know what you think and don’t forget to voice up!
Notes:
Sex Crimes in the Penal Code (Most updated version after 2017):
Forced Indecent Acts Article 176 – A person who, through assault or intimidation, forcibly commits indecent acts with a person of not less than thirteen years of age shall be punished by imprisonment with work of not less than 6 months and not over 10 years. The same shall apply to a person who commits indecent acts with a person under thirteen years of age.
Forced Sexual Intercourse Article 177 – A person who, through assault or intimidation, forcibly commits sexual intercourse, anal or oral sexual intercourse (hereby referred to as sexual intercourse) with a person of not less than thirteen years of age commits the crime of rape and shall be punished by imprisonment with work for a definite term of not less than 5 years. The same shall apply to a person who commits sexual intercourse with a person under thirteen years of age.
Quasi Forcible Indecency; Quasi Forcible Sexual Intercourse Article 178 – A person who commits an indecent act upon a person by taking advantage of loss of consciousness or inability to resist, or by causing a loss of consciousness or inability to resist, shall be punished in the same manner as prescribed for in Article 176.
A person who commits sexual intercourse with a person by taking advantage of loss of consciousness or inability to resist, or by causing a loss of consciousness or inability to resist, shall be punished in the same manner as prescribed in the preceding Article.
Indecent Acts and Sexual Intercourse by the Custodian Article 179 – A person who takes advantage of their power of custodian and commits indecent acts upon a person under the age of 18, shall be punished in the same manner as prescribed in Article 176.
A person who takes advantage of their power of position as the custodian and commits sexual intercourse with a person under the age of 18, shall be punished in the same manner as prescribed in the preceding Article.
References
- 「50代が14歳と性交」立憲本多議員の発言が物議を呼んだ性交同意年齢の刑法改正議論 法務省の検討会での議論と問題の発言｜ゲスト：島岡まなさん（6/16） #ポリタスTV
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- 1 児童福祉法（昭和二十二年法律第百六十四号）（抄） 最終改正：平成二十三年八月三十日法
- 都道府県青少年保護育成条例集(平成20年12月1日現在)
- 性犯罪に関する刑法～110年ぶりの改正と残された課題
- 一般社団法人Spring ENGLISH
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- Netherlands Criminal Code
- Convention on the Rights of the Child
- 中学校学習指導要領解説 保健体育編
- 一般社団法人パリテ・アカデミー | Academy for Gender Parity
