After 116 Years, Japan Raised Age of Consent for Sex to 16. What Took So Long?

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After 116 Years, Japan Raised Age of Consent for Sex to 16. What Took So Long?

Even in recent history, courts in Japan often looked at consent through a narrow lens.

After 116 Years, Japan Raised Age of Consent for Sex to 16. What Took So Long?
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In the summer of 2021, when COVID-19 and the postponed Olympics were together delivering a heady mix of sweat and headlines in Japan, a 56-year-old male politician from the Constitutional Democratic Party of Japan (CDP) — Honda Hiranao — said that it was “strange” that he might be arrested if he had sex with a 14-year-old girl who consented to the relationship. His comments caused an uproar, and he was forced to resign. But this was just the tip of the iceberg.

Honda’s comment came amid a discussion on raising Japan’s age of consent for sex from 13 years of age. Last month, Japan’s parliament finally changed the law, raising the age of consent to 16. Under the previous law, which was written in 1907, a person aged 13 or older had to prove in court that they had resisted sexual advances in order to be able to prove that any encounter was non-consensual, and thereby rape.

The amended law, following the passage of a bill that had many phases of back and forth, also broadened the definition of rape from “forcible sexual intercourse” to “non-consensual sexual intercourse,” thus focusing on the larger issue of consent. It also details eight scenarios whereby a victim may not be able to fully express consent, one of which includes abuse of power and the possible fear of consequences if the victim were to refuse sex. Toward protecting the sexual rights of young adults, the amended law calls for punishment of a person only if they are five or more years older than a minor, when the minor might between ages 13 and 15. At the same time, the legal window for reporting rape has been extended to 15 years from the previous 10.

The change in the law with respect to the low age of consent for sex was a long time coming. Even in recent history, courts in Japan often looked at consent through a narrow lens. In 2019, a lower court in Nagoya prefecture found a man not guilty of raping his daughter when she was between the ages of 14 and 19; the father’s lawyers questioned the daughter’s inability to resist his advances. Had she been younger than 13, she wouldn’t have had to prove the rape. The Nagoya High Court overturned the ruling and the father was given a 10-year sentence, but by then, it had galvanized the country to take to the streets, which led to the emergence of “flower demonstrations” across the country.

The previous Meiji-era law had undergone some changes, but did not serve to protect children, experts say. For example, it was only in 2017 that the punishment for rape was increased to five years from the previous one to three years; the scope of sex crime laws was expanded to include incest and indecent act toward minors by their legal guardians; and the victim was changed to “a person” rather than being defined as female. 

However, the age of consent was still left at 13 at the time.

At the same time, all prefectures have their own ordinances that establish punishments for the sexual abuse of children. For example, the ordinance in Tokyo prefecture has the age of consent set at 18 to prevent “corruption of minors,” even though there is no standardized law or interpretation of what “corruption of minors” means.

The Origins of Change

Dr. Emma Dalton at RMIT University in Melbourne, who researches gender issues in Japan, puts the law into context. In the early 1900s, the lifespan of a woman was 44, and she was only meant to birth children. The idea of consent, Dalton says, was a completely different story. For over 100 years, the increasingly archaic law remained on the books.

But in 2014, Matsushima Midori from the ruling Liberal Democratic Party (LDP) created a working group within the Ministry of Justice to examine the issue. 

Matsushima “was concerned that theft carried a heavier sentence than rape. Women’s groups then came forward… wanting to contribute to this. A group called Spring, which is led by survivors of sexual assault, and its then-chief Jun Yamamoto, were instrumental in bringing in the amendments in 2017,” Dalton says. 

Neither Spring nor Yamamoto responded to repeated email queries from The Diplomat.

When Dr. Junko Yamashita was a university student in Japan, the issues discussed by feminist groups pertained mostly to the sexuality of young girls. “In the early 20th century, like in other countries, there was a strong movement for women’s voting rights; the movement in the 1970s was focused on unpaid work,” said Yamashita, who is a senior lecturer at University of Bristol in the U.K.

Having researched gender and feminism in Japan for the last two decades, she notices a difference now: consent seems to be at the forefront of all conversations. One of the reasons for this is the “flower demo,” and their wide use of social media. “They have been successful in mobilizing the youth,” Yamashita said, adding that the movement and its success has shown Japan how common sexual harassment is.

The “flower demo” has taken place on the 11th of every month since 2019. Survivors of sexual violence stand together with flowers and tell the stories of their victimization, and thus protest the unjust acquittals of sexual crimes. Yamashita feels that they have also been successful “in creating a space for women to step out and talk. This is very different from the work done by lawyers and other feminist groups working on specific cases.”

There are also other individual instances of resistance. Journalist Shiori Ito won a civil suit in 2019 against prominent journalist Noriyuki Yamaguchi, who held close ties to the late Prime Minister Abe Shinzo. Ito went on to be declared as one of the 100 most influential people by Time magazine in 2020 for leading the way in more stories of sexual assault by high-ranking individuals to come to the fore. But it came at a heavy personal cost: “[Ito] did not stay anonymous, and see what happened to her! She was hounded out of Japan and cannot even live there,” Dalton remarked.

Ito did not respond to email queries from The Diplomat.

For her book “Sexual Harassment in Japanese Politics,” Dalton interviewed politicians in rural Japan. She found that the men were in their 60s and 70s, and the women were in their 40s or 50s. “Many women said that it did not matter how old their male colleagues were: They all behaved badly,” she said, adding that it was no surprise that in the World Economic Forum’s Global Gender Gap Index, Japan ranked 120th out of 149 countries in 2021, sliding down from 110 in 2018.

“There has always been international pressure on Japan to clean up its act, but the change had to come domestically. Japan is currently going through that momentum right now,” added Dalton.

Consensus on Consent Within Patriarchal Systems

Rape laws in most countries today revolve around the idea of consent. But in Japan, the evidence of physical struggle alone determined rape, even in the absence of consent. Hence, Dalton says, consent was one of the main issues that many women’s groups wanted to include in a revised law.

Professor Robert O’Mochain at Ritsumeikan University in Kyoto, who has been researching the #MeToo movement in Japan, said that Honda’s statement about “consensual” sex with a 14-year-old was telling in regard to what is acceptable within political discourse. “Politicians don’t make comments unless they have made an assessment about what will appeal to most of their electorate,” he said. Indeed, as Yamashita said, it all boils down to Japan’s patriarchal society as the root cause. This also has wider ramifications; most sexual assault cases go unreported.

In November 2020, the survivors-led organization Spring released the results of a survey that it conducted among 5,899 victims of sexual abuse. The results were stark: only 15.1 percent of respondents had contacted police; victim reports were accepted by police for only 7 percent of all respondents; and only 0.7 percent reported that their attackers were indicted and found guilty in lawsuits. One-third of respondents reported having been harassed by “parents, parents’ partners, relatives, or other acquaintances.”

The nature of harassment ranged from groping, being shown or being asked to show genitalia, and rape. Shockingly, over 80 percent of respondents who claimed they were sexually abused via physical penetration by an adult known to them were aged 12 or younger.

Ito’s description of her ordeal with reporting the rape — and being made to re-enact it — could explain why women in Japan are reluctant to approach the police. She wrote in her book “Black Box”: “The re-enactment wasn’t done at the scene but instead at a martial arts training room on the top floor of Takanawa police headquarters…. in front of a bunch of police officers — all male — and involved re-enacting the rape scene using a plastic doll as the perpetrator.”

In her 2013 book “Sei to hōritsu: Kawatta koto, kaetai koto” (Sex and The Law: What has Changed, What We Would Like to Change), Yukiko Tsunoda, a feminist lawyer and Japan’s leading expert on sexual harassment, explained that according to Japanese law, the crime of “rape” (gōkan) must include force or intimidation of a degree that the victim was unable to resist. If it is found that the victim could have resisted, the crime might be “criminal assault” (bōkō) or “criminal intimidation/threat” (kyōhaku), but not rape.

In an email exchange, Tsunoda illustrated the systemic manner in which rape of a minor is dismissed in Japan: “In 2015, the Japan Federation of Bar Associations (JFBA) wrote that children aged 13 usually know what sex is because information on sex is available everywhere. The JFBA thus opposed the draft on the amendment of the rape law [at that time]. This opinion by the JFBA may show the trend of Japanese society to some extent,” she wrote to The Diplomat. The JFBA report also expressed concern over raising the age of sexual consent, “since it may lead to repression of sexual activities by minors, disagreement with minors’ right to self-determination, and may result in some people having a criminal record of a juvenile crime.”

Yamashita said that while the issue of raising the age of consent for sex might seem like just a legal detail, it is a paradigm that is centered on “the freedom of sex for male adults.”

On the other hand, sexual harassment in Japan comes within the ambit of civil code. “It is actually not a crime to be harassed in your workplace. So when Taro Aso [Japan’s former deputy prime minister] said that sexual harassment is not a crime, many people said he was a misogynist, but it is legally true!” said Dalton.

But Japan is not entirely an anomaly. The lowest age of consent in the world is 11, in Nigeria. The age of consent is 12 in the Philippines and Angola, and 13 in Burkina Faso, Comoros, and Niger. According to one study, between 1945 and 2005, there were 122 reforms in rape laws in 77 countries. The study shows how changes expanded the scope of the laws: Many more actors and acts of violence began to be constituted as rape.

In August 2019, the Commission on Domestic and Sexual Violence (CDSV) within the American Bar Association (ABA), along with the Section of Civil Rights and Social Justice, went on to co-sponsor a resolution to define affirmative consent as a standard to be used in sexual assault accusations. But the ABA’s Criminal Justice Section (CJS) objected, on the grounds that it would undermine the constitutionally guaranteed presumption of innocence of the accused person.

European countries are not a safe haven for children either. Until 2019, only eight European countries out of 31 recognized the definition of rape as sex without consent. It was only in 2021 that France raised the age of consent for sex from 13 to 15. In 2017, a French criminal court acquitted a man for raping and impregnating a 11-year-old, ruling that there was no violence or threat. He was later convicted on appeal. Similarly, Finland was faced with calls for reforms in 2018 when a man charged with raping a 10-year-old girl was acquitted as there was no evidence of violence or threat. 

The emphasis on physical resistance remains even though freezing is a common physiological and psychological response during sexual attacks. A 2017 Swedish clinical study found that 70 percent of the 298 women rape survivors assessed experienced “involuntary paralysis.”

A Culture of Sexy Cuteness and Cute Sexy

One of the issues related to the low age of consent for sex in Japan is the concept of enjo kōsai or “compensated dating,” whereby men offer young girls money or gifts for companionship. Comments by the then-U.N. Special Rapporteur on Child Prostitution Maud de Boer-Buquicchio in 2015 drew the ire of the government when she spoke about “the multiple forms in which the sexual exploitation of children develops and manifests itself.” Yamashita said that the problem lies within the phrase itself: It cloaks the act within the garb of a “relationship,” wherein older men have sex with young girls. The assumption is that the girls are the problem, and not the men’s actions.

All of this falls within Japan’s large sex industry. One estimate from 2001 claimed that the sex industry is almost worth 1 percent of the country’s gross national product — which is equivalent to its defense budget. “With pornography and prostitution being widely consumed, it fuels the idea that women are for purchase. And within this context is the more specific fetishization of young girls, which is seen in magazines, anime, and manga, with photos and images of girls and women in school uniforms,” Dalton said.

Yuki Ueno, who is a lecturer at the University of Toulouse-Jean Jaures in France, has been researching the sexualization of girls’ school uniforms in Japanese society. She says that the images of kawaii (cute) and sexuality are always linked, which translates into a perception that girls are “asking for it.” It was only in 2014 that Japan banned the possession of images of child sex-abuse images, making it the last OECD country to do so.

Trajectory of Change?

When Ueno was in elementary school, one teacher hugged and kissed her all the time, despite her protests. “I did not tell my parents about this, and we just had to get over it. This happened to us girls all the time, and only when I began to live in France, I realized that this was not normal,” Ueno reminisced. “Almost all women in Japan go through such situations in all age groups, and this is unfortunate.”

Her book “Sexual Abuse and Education in Japan,” co-authored with O’Mochain, delves into sexual abuse in educational and other wider contexts, wherein rank and hierarchy severely impact reporting of and response to sexual crimes, starting from activity clubs in schools.

While Ueno feels that Shiori Ito’s case came to light in the Japanese press only because she won the civil suit. Many women still do not speak up because most do not recognize or feel compelled to challenge sexual abuse. However, she believes that the current law amendment has moved closer to addressing social issues. O’Mochain also sees hope in the fact that it was people’s pressure, by way of a petition that garnered over 40,000 signatures, that motivated the parliament to raise the age of consent for sex.

However, O’Mochain said that most of his students at his university in Kyoto have not heard of Shiori Ito. “She was hailed internationally, but none of that happened in Japan,” he explained. 

O’Mochain also shared the data from an opinion poll that was conducted in 2022, which asked 3,000 people in Japan if the age of consent should be raised. Forty-three percent said that they had no opinion, and almost 19 percent said that there was no such need. “There is something wrong in a society if the majority are complacent and have no opinion. It is an indication that there has to be a lot more awareness,” he says.

Thanks to Takashi Kitano for additional research.