Why is Japan Redefining Rape?

Megumi Okano claims that days after their rape, the victims already knew that the offender would escape punishment.

Megumi, who identifies as they, knew who had done it and where to find him. Megumi was aware that there would be no case, though, as the Japanese authorities were unlikely to classify what had taken place as rape.

The college student made the decision not to call the police about the incident.

He was able to live a free and simple life because I was unable to pursue justice in that manner. I find it painful,” Megumi admits.

But a shift could be on the way. Only the second time in a century, the Japanese parliament is currently debating a historic bill to alter the nation’s sexual assault laws.

The greatest and most important change in the bill is that it will redefine rape from “forcible sexual intercourse” to “non-consensual sexual intercourse,” thereby allowing for consent in a society where the idea is still not well-accepted.

According to current Japanese legislation, rape is defined as any sexual activity or indecent act that is carried out “forcibly,” “through assault or intimidation,” or by exploiting a victim’s “unconscious state or inability to resist.”

Contrary to many other nations, which define it more broadly as any non-consensual sexual act or intercourse, no means no under this definition.

Activists contend that Japan’s restrictive definition has led to judges and prosecutors applying even more restrictive interpretations of the legislation, creating an impossible standard for justice and encouraging a culture of skepticism that discourages survivors from reporting their attacks.

For instance, a man once held a 15-year-old girl to a wall in Tokyo and had sex with her despite her resistance. As the court determined that his acts did not make it “extremely difficult” for her to resist, he was exonerated of the charge of rape. The age of consent in Japan is only 13 years old, the lowest among the richest democracies in the world, therefore the teenager was treated as an adult.

“The actual trial processes and decisions vary – some defendants were not convicted even if their acts were proven to be non-consensual, as they did not meet the case of ‘assault or intimidation’,” explains Yuu Tadokoro, a representative for Spring, a sexual assault victim organization.

It’s why Megumi says they did not go to the police after the assault by a fellow university student.

According to Megumi, the two of them were watching TV together when he began making sexual advances towards Megumi, who said “No”.

Then, he attacked. The two “wrestled” for a while, says Megumi, before Megumi froze and gave up resisting. This well-documented response to an attack is sometimes not covered by the current law, according to activists.

They had also heard of survivors experiencing victim blaming and “second rape” – where survivors are re-traumatized when encountering insensitivity from the police or hospital staff – in Japanese investigations. In the days that followed, Megumi, a law student, pored over the penal code and case precedents and realized what had happened would not meet court standards of “assault and intimidation”

Megumi claims that instead, they visited the campus’ harassment counseling center, which opened an investigation and determined that the attacker had committed rape.

The center declined to comment on the case when the BBC contacted them, claiming client confidentiality.

By the time the inquiry was over, the attacker had graduated, so he only received a warning, according to Megumi. I was upset that I was unable to use the legal system to make this person regret his actions in a proper way.

Demand for change

Megumi isn’t by herself. Only one-third of rape instances identified in Japan result in charges, which is slightly less than the average percentage of criminal prosecutions.

However, there has been an increasing need for change from the populace.

In 2019, a string of four sexual assault cases that all ended with the accused perpetrator being cleared in less than a month outraged the Japanese people.

In one instance in Fukuoka, a guy engaged in sexual activity with a woman who was unconscious due to alcohol use, which is sexual assault in other jurisdictions. The woman allegedly participated in a routine drinking session at a restaurant for the first time.

The gathering was reportedly known for its sexual permissiveness, and the man reportedly claimed that “men could easily engage in sexual behavior” there. He further claimed that witnesses who saw the events did not intervene. Additionally, he concluded the woman granted consent since she once opened her eyes and “uttered noises” during the act of having sex.

In a different Nagoya case, where a father repeatedly had sex with his teenage daughter over a number of years, the court questioned whether he had “completely dominated” her because she defied their wishes by choosing a different school, even though a psychiatrist testified that she was typically incapable of resisting her father.

Most of these instances were retried after the public uproar, and the attackers were convicted. Activists started the Flower Demo, a national campaign, to show support for sexual assault survivors.

According to activists, this, the growing #MeToo movement, and journalist Shiori Ito’s historic victory all contributed to igniting the national discourse on sexual assault and advancing legislative reform.

The new law specifically identifies eight situations when it is challenging for the victim to “form, express, or fulfill an intention not to consent” as part of the redefining of rape.

They include scenarios when the victim is under the influence of drink or drugs, is threatened or subjected to violence, or is “frightened or amazed”. Another situation that seems to reflect a power abuse is the victim being “worried” that they would suffer consequences if they did not obey.

Additionally, both the age of consent and the statute of limitations will be raised to 16 years.

Some rights organizations claim the scenarios are too ambiguously phrased and have sought for additional clarification. They worry that their actions will make it more challenging for the prosecution to establish their case. Others have argued that the statute of limitations should be extended even further and that survivors who are children need to be given additional protection.

But if adopted, the measures would represent a win for those who have long pushed for change.

“We are hoping that by modifying even the law’s title, they would spark a discussion in Japan about what constitutes consent. What does a lack of consent mean? Kazuko Ito, vice president of Human Rights Now in Tokyo, states

But the clock is ticking. The new law must be approved by the upper chamber of the Diet, Japan’s parliament, by June 21. However, it is currently mired in an immigration controversy.

Missing that deadline would make the reforms against sexual assault questionable. Last week, activists criticized the delay as “unacceptable” and urged lawmakers to act right now.

Redefining sex concepts

Actors, whose push for change goes far beyond the courtroom, claim that the measures only address a portion of the issue.

In Japan, sexual assault is still a taboo subject. It has only recently received widespread attention as a result of high-profile cases like Shiori Ito’s legal battle, sexual assault survivor Rina Gonoi’s public declarations, and the Johnny Kitagawa expose.

According to Kazuko Ito, one of the issues is that Japanese people have “a distorted idea of sex and sexual consent” due to years of cultural influence.

On the one hand, consent is barely mentioned in sex education, which is typically taught in a covert and modest manner. Yet, according to Ms. Ito, Japanese kids have easy access to porn, where it’s all too typical to see women enjoying having sex against their better judgment.

Sakura Kamitani, an attorney and human rights defender, believes that Japan should provide survivors of sexual assault with more financial and psychological help.

She says that assistance should also be given to the assailants. Since sexual crimes have such a high recidivism rate, prevention must be a priority to keep the number of victims from rising.

However, advocates argue that passing and enacting the reforms in order to encourage survivors to report incidents is the most crucial work at hand right now.

It would be upsetting to people, according to Ms. Ito, if this only results in a surface-level change that doesn’t genuinely save victims.

Megumi claims that if the legislation changed, but not right away, they might think about telling the police about their assault.

I think I’ve already accomplished some emotional peace. Using a Japanese word for the first person to dive into anything new, they add, “I think it is very hard to put myself into that serious position of the “first penguin.”

Megumi, who identifies as gender-fluid, is instead concentrating on the rights of sexual minorities and assault survivors and plans to launch a law practice to assist these groups.

“Now that I can see some optimism, I’m relieved. Many people are beginning to understand that the position we are in right now is twisted and incorrect.

“I believe things are going to change faster and more significantly than we think, if everyone joins in and works together. My message [to everyone] is: ‘If you think something is wrong, let’s change it together