Japan comes of age, revises age of consent for sex from 13 to 16 years

With a rather low age of consent for a developed country, Japan has now changed it to 16 years. This is a step closer to the global goal of raising the age of consent to 16 years.

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JAPAN has finally raised the age of consent for engaging in sexual activities from 13 years to 16 years.

Japan's Penal Code was enacted in 1907, modelled on the German Penal Code, 1871. The 1907 code replaced an 1880 code based on the Napoleonic French Code, 1810. Major amendments to the Penal Code of 1907 were made in 1941, during the war years, but the age of consent for sexual activity remained unchanged throughout. 

A Bill proposing historic changes in penal law was introduced by the Ministry of Justice and passed unanimously by Japan's Upper House of the Diet (Parliament) last Friday. 

The Bill has made significant changes by updating the definition of rape and introducing the offence of voyeurism, among other things. It also imposes a ban on the distribution and possession of sexually exploitative images taken without consent.

Also read: The age of consent in India requires a rethink

Age of consent and the Japanese legal maze 

To say that the Bill raises the age of consent for engaging in sexual acts in Japan may be putting it too simplistically.

Before the Bill, sexual intercourse with a minor below the age of 13 years was considered rape, but for all practical purposes, having sex with someone less than 18 years of age remained outlawed, except in 'Romeo and Juliet' situations— where both the partners were of similar ages.

If someone engaged in sexual intercourse with a minor between the age of 13 years and 15 years, it would be considered statutory rape if the partner was five or more years older.

Similarly, the Child Welfare Act, 1947 (as amended in 2007) defines a child as a person below the age of 18 years. It prohibits the depiction of individuals under the age of 18 years in pornography. The anti-prostitution clause under the national legislation forbids forcing individuals under the age of 18 to engage in sexual acts. 

A range of local ordinances known as Seishōnen Hogo Ikusei Jōrei (Regulations for the Protection and Education of Young People) regulate the sexual behaviour of those below the age of 18 years and between adults and those below the age of 18 years. It prohibits "lewd acts" against those below the age of 18 years.

They provide that, in cases where one or both of the partners are below 18 years of age, unless the partners are in "serious love toward marriage" and their relationship has family and social approval, sexual activity between them is prohibited. 

In 1985, the Supreme Court of Japan held that the ordinances were to be subject to a narrow interpretation as proscribing only those sexual acts "conducted by unfair means that take advantage of the juvenile's mental or physical immaturity, such as by enticing, threatening, deceiving, or confusing, as well as [acts] where the juvenile is treated merely as an object to satisfy one's own sexual desires."

The court reiterated that sexual acts within "socially accepted norms" such and engagement and marriage could not be prohibited as "indecent" merely because they were between an adult and an adolescent.

So, what the new Bill effectively does is eliminate the need for a victim of sexual violence to prove the higher degree of burden of proof warranted under the Penal Code (Act No. 45 of 1907) by simply proving that there was no consent.

A minor has no longer to bear the burden of proof in sexual crimes 

The Japanese Penal Code defined rape under Article 177 as "forcible sexual intercourse" committed by a person who, through assault or intimidation, forcibly engages in vaginal intercourse, anal intercourse or oral intercourse with another person of not less than 13 years of age. This offence is punished by imprisonment for a definite term of not less than five years.

Article 178(2) of the Penal Code also punished forcible sexual intercourse when the person engaged in sexual intercourse with another by taking 'advantage of the unconscious state' or 'inability to resist,' or by causing the 'person to lose consciousness' or 'have the inability to resist'.

Now, "forcible sexual intercourse" has been replaced with "consentless sex crimes," which not only puts greater emphasis on consent but has also removed the requirement of proving physical coercion or violence. Non-consensual sexual intercourse is now punishable with up to 15 years of imprisonment while voyeurism is punishable with a prison term of up to three years. 

For determining free consent, factors like power imbalance including socio-economic factors, use of violence, intimidation and intoxication will now be considered. In cases where victims with mental or physical disorders are involved, the act will be considered non-consensual. 

The Bill introduces eight scenarios of "consentless sex crimes" including offences committed under the influence of alcohol, drugs, fear or intimidation and so on. However, survivors of sexual violence have criticised the Bill for not providing a clear definition of what constitutes rape. Many said that the definition does not fit the "reality of damage caused".

Japan took its sweet time in meeting the international standards of rape legislations 

In early January, the draft proposal concerning the revision of the Criminal Law Sexual Offences Regulation (revised edition) was distributed to the legislative council, which proposed certain changes to the definition of "forcible sexual intercourse". 

However, the definition of rape still failed to meet the international rape legislation standards as specified in the Convention on the Elimination of All Forms of Discrimination Against Women as it excluded victims of rape who actively fail to prove a lack of consent. 

In 2021, the UN Special Rapporteur on Violence Against Women, Dubravka Simonovic, urged the governments to harmonise their national laws with international human rights standards to effectively prevent and combat impunity for rape. 

Simonovic said: "It [rape] should always be based on lack of consent by the victim. The use of violence or force shows lack of consent, but it is not a constitutive element of the crime of rape. Lack of consent by victim should be at the center of all definition of rape."

On May 14, the Bill for partial revision of the Penal Code and the Code of Criminal Procedure proposed the revision of the age of consent and criminalising all non-consensual sexual intercourse. 

The latest Bill grants victims a time-window of 10–15 years to report the commission of sexual crimes. Earlier, the statutory limitation on reporting sexual crimes was five years.

Also read: The need for revising the age of consent under the POCSO Act

Flower demonstrations: Outcry of sexual violence survivors over high rate of acquittals 

These changes are a part of Japan's legislative overhaul after years of public outcry and demonstrations. One such movement known as Flower Demonstrations (Flower Demo), decried the experience of sexual violence survivors and urged the society to respond to it. 

The Flower Demo was a movement that was triggered after a 19 years old girl was raped by her father and a court acquitted him of all the charges in 2019. 

The Nagoya District Court's Okazaki Branch acquitted the father from the offence of "quasi-forcible sexual intercourse" on the ground that although the daughter did not give consent, she did not resist violently. However, the Nagoya High Court reversed the decision and punished the accused with 10 years of imprisonment.

In another ruling in May 2022, the Toyama District Court found a man not guilty of rape because the woman "did not cry for help loud enough".

In 2017, the antiquated Penal Code was revised significantly. It defined the offence of rape as "forcible sexual intercourse", expanded the definition to male victims, and increased the minimum punishment from three to five years. It also enabled prosecution even if women did not file a complaint. 

Despite these changes, the law remained below international standards as it made difficult for the victim to access justice owing to the higher evidentiary thresholds like proving "assault or intimidation or that the victim was incapable to resist". 

As per the 2017's Cabinet Office survey of the Gender Equality Bureau of the Japanese government, one in 14 women and one in 100 men in the country have experienced non-consensual sexual intercourse in their lives. However, only 1,405 such cases have been recognised in 2019, and only 470 out of them have been prosecuted. 

In Japan, where most of the victims of sexual crimes are women, many experts say that the higher burden of proof represents the traditional conservative view that women are responsible for protecting their chastity. 

Amongst the Group of Seven (G7), which is an intergovernmental political forum of seven developed countries, Japan had the lowest age of consent. 

Interestingly, Germany, whose penal code was the inspiration for the low age of consent in Japan, and Italy now have the lowest age of consent among G7 countries at 14 years of age.