As Japan prepares to deliberate a possible revision to the Penal Code concerning sex crimes this year, two government officials from Sweden, where the criminal law was revised in 2018 to penalize all sexual conduct without consent, have spoken out in Japan about how consent is being defined and what constitutes rape.
Viveca Lang, senior adviser at Sweden's Ministry of Justice, and Hedvig Trost, senior legal manager at the Swedish Prosecution Authority, shared their views on consent-based sexual offense legislation in a news conference at the Japan National Press Club in Tokyo's Chiyoda Ward Jan. 21.
Under Sweden's revised legislation, rape is defined as "sexual intercourse or some other sexual act that in view of the seriousness of the violation is comparable to sexual intercourse, with a person who is not participating voluntarily." The slogan for this stipulation which is based on sexual consent is "yes means yes" -- and anything besides this is a "no."
In Japan, however, it is a different matter. According to the Penal Code, an act is recognized as rape only when intercourse or oral sex is accompanied by assault or intimidation. In cases in which the perpetrator had mistakenly believed that there had been consent, the act cannot be recognized as rape.
Trost noted that in Sweden, the question of voluntary participation forms the basis of the country's new legislation.
"It's no longer required to establish that the perpetrator used violence or threats, or that the victim's particularly vulnerable situation was exploited," she said. "To convict for rape, it's enough that the other person was not participating voluntarily."
While there is no legal definition for "voluntary participation," Trost said, "When assessing if participation is voluntary or not, (one) should give particular consideration to if the voluntariness was expressed by word or by deed." Furthermore, in cases in which a party is engaging in a sexual act as a result of assault or threats, or when one takes advantage of the fact that the other party is unconscious, intoxicated, or is especially vulnerable due to a physical or psychological disability, or is in a dependent relationship such as that between a teacher and a student, the sexual act cannot be considered "voluntary."
In Sweden, the legal punishment for rape is between a minimum of two years and a maximum of six years in prison. A new crime called negligent rape was also instituted under the country's reforms in 2018. Charges are brought against those who are extremely negligent to the fact that the other party is not providing consent. Trost said that convicting someone for rape requires that the person has the intent to rape. But with negligent rape, it's enough to prosecute someone if they merely suspected that the victim was not participating voluntarily.
"Why? From the victim's point of view, the damages are often the same, regardless of the intent or the negligence of the perpetrator," Trost said.
A Swedish Supreme Court decision based on the new legislation was handed down in July 2019. It was a case in which a man and a woman who had met through a social networking service had sex when they met in person for the first time. The woman had not clearly indicated that she wanted to engage in sexual activity. The two had agreed to lie in the same bed and had only their underwear on at the time, but the Supreme Court ruled that that was not evidence of the woman's expression of voluntariness to engage in sexual acts. The man was charged with negligent rape.
"You can say that the main rule is that an expression is needed either by word ... or deed ... that you are of free will participating in a sexual activity. So, if someone wants to have sex with another person and that other person is silent or passive, the other one will have to ask if the other person is wanting to have sex to find out if he or she is participating voluntarily," Trost said.
Lang, meanwhile, explained that "good legislation is not enough to get prosecutions and convictions," and spoke about the importance of providing support to victims. In Sweden, Lang said, a lawyer is appointed by the courts to support a victim of an alleged sex crime. They support the victim from the pre-investigation to the trial, and also in claiming financial compensation. The problem of whether a victim can afford an attorney does not arise because the attorneys are funded by the state.
When asked by freelance journalist Shoko Egawa about concerns over false accusations in the Swedish system, which seems to provide ample assistance to victims of sex crimes, Trost responded, "These crimes, as I mentioned, are very difficult to prove ... For prosecution and conviction you need some supporting evidence. It doesn't have to be witnesses because there seldom are witnesses to rape. But it can be, for example, if the victim has talked to a friend, called the police immediately, the reactions afterward that maybe the family had seen, SMS chatting with friends, and so on ... But when it comes to false reports in Sweden, I guess it's the same in Japan, (making) false accusations is quite a severe crime. Of course, we can never be 100% sure that there aren't false accusations; there are ... But it's very, very rare."
When asked by a Mainichi Shimbun reporter what constituted words and deeds that express consent, and how a common understanding of them could be furthered, Lang stated, "The law is written from a point of view that normally, if you want to have sex with someone, you express it in some way, either by saying 'yes,' or something else similar, or by how you act. So this is the starting point. What we had before was actually, 180 degrees otherwise."
Lang explained that prior to the 2018 amendment, it was legally acceptable to have sex with someone who didn't express anything. Having said so, she emphasized that this was a question for the courts, and that by handing down rulings based on the new legislation, it will become increasingly clear what constitutes consent.
The 2018 criminal code amendment occurred against the backdrop of a strong push from civil society. Lang admitted that after amendments in 2005 and 2013, she felt that consent-based legislation had been achieved, and that no further revisions were necessary. Rather, she said, "... from a legal point of view, we were kind of opposed, actually." But some people were still unhappy with it, so another committee was set up, and an amendment with unanimous support from all political parties was ultimately passed.
Both Lang and Trost reiterated that the legislation makes it clear that every individual has the right to sexual integrity and sexual self-determination, and that this has to be respected. Trost also stated, "The long-term purpose is to change attitudes, change values. And the message is that if a sexual act is not voluntary, it's illegal."
(Japanese original by Aya Shiota, Integrated Digital News Center, and Kayo Mukuda, Lifestyle and Medical News Department)