(Mar. 16, 2017) The Cabinet submitted a bill to the Diet, Japan’s parliament, on March 7, 2017, on amending a part of the Penal Code. (Bill Status Information, Cabinet Bill 47 of 193rd Diet Session, House of Representatives, Japan, website (in Japanese).) Former Minister of Justice Midori Matsushima had initiated the discussion of the amendment in 2014, soon after becoming the Minister; she expressed her intention to amend the Penal Code because she believed it was not right that the statutory punishment for rape was lighter than that for robbery. She explained that rape hurt women’s minds and bodies and might damage them for the rest of their lives, therefore rape is not a less serious offense than robbery. (Penal Code Amendment for Harsher Punishment of Sex Crime Offender, My Direction During Minister of Justice Will Be Realized, Representative Midori Matsushima (May 3, 2016) (in Japanese).)
Matsushima also established the Discussion Group on Sex Crime Penalties within the Ministry of Justice (MOJ). The Group had 12 meetings in nine months and submitted a report to the Ministry in August 2015 on its findings. (Discussion Group on Sex Crime Penalties, Report from Discussion Group on Sex Crime Penalties (Aug. 6, 2015), MOJ website (in Japanese).) Subsequently, the Ministry directed its Judicial System Council to discuss the amendment of the sex offenses part of the Penal Code. The Council submitted its outline to the Minister in September 2016. (Judicial System Council 177th Meeting (Sept. 12, 2016), MOJ website (in Japanese).) The bill submitted to the Diet was prepared with reference to the outline.
Highlights of the Bill
Under the amendment bill, the concept of rape in Japanese law is changed. The Japanese word for rape means forced vaginal intercourse. Therefore, other forms of sexual intercourse are not covered by the current provision on rape. For example, a male cannot be a victim of rape. In the bill, the phrase “forced sexual intercourse” is used, and the scope of the punishable acts under the provision is thereby expanded. (Amendment of Penal Code, Act No. 45 of 1907, art. 177, proposed by Cabinet Bill 47 of 193rd Diet Session (CB47), MOJ website (in Japanese).)
The bill proposes to establish a new crime against guardians who have sexually abused children under the age of 18 by taking advantage of their psychological control over the children. (CB47, to amend Penal Code, art. 179.) Under the current crimes of rape or other act of sexual assault, the use of threats and/or violence is required as an element of the offense. However, when an aggressor is in a position to control or influence over a victim, the use of threats and/or violence may not be necessary in order for the aggressor to sexually abuse the victim. Therefore, it was deemed necessary to add a new crime to the Penal Code to address this factor. (Discussion Group on Sex Crime Penalties, supra, at 21.)
The bill also proposes to remove the requirement that a victim request the indictment of an accused rapist. (CB47, to replace Penal Code, art. 180.) This provision is aimed at respecting the victims’ intention to keep their honor and privacy. (Minoru Oya, KEIHO KAKURON 75 (2001).) However, as society changes, people have started to see a more negative side of this provision. For example, some victims stated that it is too burdensome for persons who have recently been sexually assaulted to be put in a position where they must decide on pursuing a case. Also, victims are often pressured by the aggressor not to request an indictment. (Discussion Group on Sex Crime Penalties, supra, at 3.)
Finally, the bill proposes to increase the penalty for sex offenders. The minimum punishment for rapists will be raised from the current three years to five years. (CB47, to amend Penal Code, art. 177.)