The Justice Ministry’s draft of legal revisions to improve the handling of sex crimes has infuriated rape victims and their supporters who said they again feel abandoned by the government.

The draft, released on Oct. 24, lists eight cases that could be criminally punished under the category of “forced sexual intercourse,” including incidents that use “violence” and “intimidation.”

But the draft did not meet the victims’ calls for a simple and clear stipulation that “sexual intercourse without consent is a crime.”

A citizens’ project comprising lawyers and 12 groups that support sex crime victims expressed outrage at a news conference in Tokyo.

“We want the (ministry) to listen to the voices of victims more,” a representative of the project said.

“It has been repeatedly confirmed at the ministry’s Legislative Council that the very nature of a sex crime is ‘conducting a nonconsensual sexual act,” the representative said. “Still, it is not explicitly defined (in the draft).”

Rape victims and their supporters have long urged the government to revise the criminal law in regard to sex crimes “to fit the reality of the damage caused.”

In many cases of sexual assault, prosecutors must prove the victims were in no condition to form or express their rejection of the sexual act.

Kazuko Ito, a human rights lawyer specializing in sex crime laws and a member of the citizens' project, said this requirement “is extremely vague.”

She said the proposed revised law “will be just like the existing one that forces victims to prove they fought back.”

Ito said the revised law should not continue to “question the circumstances of the victim.”

NOT GLOBAL STANDARD

The citizens’ project emphasized at the news conference that the legal systems of other countries are based on the philosophy that the state will protect victims.

In the United States and many European countries, conducting a sexual act without consent is a punishable crime, project representatives said.

They said Japan’s legal system, lacking such a clear legal provision, remains far behind other industrialized countries.

Ayumi Ikeda, 41, a former writer who was raped, also said she was disappointed with the ministry’s proposals.

A powerful snowstorm had hit her area in 2012, and she accepted a ride in a car driven by a man she had met for work.

During the drive, they chatted about work, but he abruptly stopped the car and started forcibly kissing her despite her objections.

His attack escalated, but she said she could not move because leaving the car would have resulted in her freezing to death.

The attack took a toll on her physical and emotional health, and she was admitted to a hospital.

Police arrested the man on suspicion of rape. But Ikeda said she was repeatedly pressed by prosecutors, “You didn’t fight back?”

Charges were not brought against the man.

“I am someone that the law does not protect,” she said.

She said sex crime perpetrators are fully prepared to create situations in which they can sap the victims’ will to fight back.

“For that reason, the criminal law should question whether the person who intends to conduct a sexual act has secured the consent of the other party.”

EIGHT CASES

The draft of revisions to the Penal Code was presented at a meeting of a working group of the Legislative Council of the Justice Ministry.

The main focus of the discussions has been how to more clearly define when “forced sexual intercourse” and other sex crimes have occurred.

In addition to the inclusion of the eight cases into the law, the ministry proposed a revision that states that a crime has been committed when it is difficult for a victim to yell “no” or take other action.

The working group is expected to further the discussion based on the ministry’s proposal.

The group refrained from proposing that “sex against someone’s will” is a crime after many members called for caution.

“It would then become a matter of reading one’s mind, and that would be inappropriate because it would be unclear what constitutes a crime,” one member was quoted as saying.

Seiho Cho, a criminal attorney, also said, “If what is on one’s mind becomes a basis for punishment, the risk of false accusation will become even higher.”

Various charges for sex crimes can be applied in sexual assault cases. Convictions largely depend on whether the victims can prove that it was “significantly difficult” for them to fight back.

For example, perpetrators can be convicted of “quasi-forced sexual intercourse” if they are found to have made their victims “mentally incompetent” or incapable of rejecting the attacks through drugs, alcohol or other intoxicants.

But victims have said the “significantly difficult” standard is vague and often impossible to prove.

For example, they said the law does not consider cases in which rape victims are too frightened or in shock to fight back.

The ministry proposed to combine the crimes of “forced sexual intercourse” and “quasi-forced sexual intercourse” under a new charge for the eight punishable cases.

These cases include acts of terrorizing, shocking and abusing the victims, or taking advantage of status, such as in an employment or a teacher-student relationship.

The ministry said a perpetrator will be punished if prosecutors prove they have committed such acts in forcing sexual intercourse.

In addition, the “difficult to resist” attack must also be proved in court.

OUTRAGE OVER ACQUITTALS

The discussions on revising the Penal Code regarding sex crimes started after four not-guilty rulings in March 2019.

In one case that sparked nationwide outrage, the Nagoya District Court’s Okazaki Branch recognized that a 19-year-old girl did not consent to have sex with her father, who was charged with quasi-forced sexual intercourse.

But the court said the daughter did not suffer from violence that made her feel “ultimate terror.”

Therefore, she was not in a situation in which it was “significantly difficult to fight back,” the court said. The father was acquitted of the charge.

The verdict led to the national “flower demonstration” movement in support of victims of rape and other sex crimes. They went public for the first time about their trauma and rallied for legal justice.

The Okazaki decision was later reversed at a high court, and the father was found guilty.

But other rulings found suspects not guilty of sex crimes because of the “significantly difficult” stipulation.

In May this year, the Toyama District Court found a man not guilty of assault and forcible sexual intercourse because the woman “did not cry for help loud enough.”

PROTECTING CHILDREN

The ministry proposal also aims to raise the age of consent from 13 to 16.

Under the existing law, any sexual act against a child under 13 is punishable. This age limit has drawn criticism as too young.

The ministry proposal said the revision would not apply to consenting children who are both aged between 13 and 15. But it will punish a person who is five years or more older than the under-16-year-old.

The ministry also proposed new legislation to punish “grooming,” which means approaching a child without revealing an indecent intention, and for secretly photographing private parts and underwear.

Hiroko Goto, a criminal law professor at Chiba University, said the ministry’s proposal has some positive aspects, such as the new laws to protect children.

Still, Goto said: “Only judges and people in the legal community will be able to read from the proposed clauses that ‘you should not have sexual intercourse against the other party’s will.’ It will be difficult for wrongdoers and victims to do so.

(This article was compiled from reports by senior staff writer Maki Okubo, Aya Shioiri, Etsuko Akuzawa and Kosuke Tauchi.)