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Some rape victims not covered by Japanese law that disregards gender diversity

Shoko Usami, a survivor of sexual violence who has worked to support fellow victims, is seen in this provided photo. (Photo courtesy of Shoko Usami)

TOKYO -- The 2017 amendments to the Penal Code in Japan increased the severity of penalties for sexual crimes and expanded the gender of rape victims from being limited to women to include men. However, LGBTQ individuals and intellectuals have pointed out that the current law still far from matches the reality of actual damage, including that of sexual minorities, and that this has led to the underestimation of damage to some rape victims.

    How should the law be developed in light of the diversity of sexuality? This article examines overlooked problems with sexual crime laws.

    (*Trigger warning: The following article contains specific descriptions of sexual violence that some readers may find disturbing.)

    First, let's identify what is legally considered rape in Japan. In 2017, the Penal Code was amended to change the name of the "crime of rape" to the "crime of forcible sexual intercourse," and to define the crime as having vaginal, anal or oral intercourse with a person aged at least 13 by means of assault or intimidation, and doing the same to a person under 13 years old. At the same time, the gender of the victim, which had been limited to women, was removed, so that anyone can be recognized as a victim, regardless of gender.

    However, the interpretation of the law that only the act of inserting genitalia constitutes sexual intercourse has not changed after the amendment. The law provides that the act of inserting a hand, finger, or object into another person's body through assault or intimidation is considered the "crime of forcible indecency," and the statutory penalty is set at a lighter level of "imprisonment for not less than 6 months but not more than 10 years" compared to "imprisonment for a definite term of not less than 5 years" for the crime of forcible sexual intercourse.

    Shoko Usami (second from right) and other volunteer Diet members hand in a written request for a revision of the crime of forcible sexual intercourse to an official of the Criminal Affairs Bureau of the Ministry of Justice at the House of Councilors building in Tokyo's Chiyoda Ward on Sept. 23, 2020. (Mainichi/Miyuki Fujisawa)

    Shoko Usami, a sexual minority and survivor of sexual violence who is currently involved in victim support, is one of those who strongly question this interpretation of the law.

    It was about 20 years ago that Usami became a victim of rape due to acts by a transgender man who was assigned female at birth. Usami was in a relationship with the man at the time, and he often abused her to the point where she felt her life was in danger. Just as she was thinking of breaking up with him, he came over to her home. Hearing a knock on the door, Usami quickly hid a kitchen knife outside, thinking that she would be killed if she upset him.

    While she was announcing the breakup to the person, who had come into her room, he raped her with his fingers and fist. "It was a horrible choice for me, either the knife or the fist," Usami recalled.

    But she didn't feel like filing a report on the incident. The perpetrator was a transgender man, but she thought the police would probably treat it as a problem between "women." She wondered if they would understand her explanation. Usami thought it's not going to be recognized as rape because the damage was caused by something other than male genitalia.

    Later, Usami broke off her relationship with her abuser by moving out one night to a place far away. She became involved in activities to support victims of sexual violence, and thanks to her encounters with her peers and learning from them, the fear and trauma she suffered at the time has healed.

    However, in the course of receiving counseling and communicating with relevant organizations, Usami says she came to strongly feel that the current legal system, which does not recognize damage caused by anything other than male genitalia as rape, does not envision the diversity of sexuality and covers up the reality of damage caused by LGBTQ perpetrators. For a society that has remained unchanged for 20 years, she says, "I feel like the scars are getting worse."

    Of course, the problem of applying the crime of forcible sexual intercourse only to assaults with male genitalia is not limited to LGBTQ people. In her role as a counselor, Usami has received consultations from people, including those who do not fall under the category of sexual minorities, who have been harmed by body parts or objects other than male genitalia, as well as those who were blindfolded or drugged and did not know what was put in them. Such cases are covered by the crimes of forcible indecency or forcible indecency causing death or injury, but are not covered by the crime of forcible sexual intercourse.

    This March 13, 2021 photo shows documents and minutes summarizing the discussion points of the Ministry of Justice's "criminal law review group on sexual offenses." (Mainichi/Miyuki Fujisawa)

    "Survivors of sexual violence who have suffered damage that does not involve male genitalia exist, and they have experienced serious harm to their bodies and minds. Sexual violence is not about sex, but about violence, and it is strange that the laws that apply to it differ depending on what was used to perpetrate it. The current situation makes it difficult for people to report their pain and difficulties due to the tendency to downplay damage caused by objects other than male genitalia. I would like to see a discussion about what was done and what the body endured, without limiting it to male genitalia, after carefully examining the actual damage," Usami said.

    When the Penal Code on sex crimes was revised in 2017, it was stipulated that a review would be conducted in about three years, and discussions have been held since June last year at an expert panel of the Ministry of Justice. One of the issues under consideration is whether to include assaults with objects other than male genitalia in the scope of the crime of forcible sexual intercourse.

    According to the minutes of the meeting, examples of body parts and objects other than male genitalia used for insertion were cited, and it was reported that "there have been cases where children are victims or women are the perpetrators and fingers or objects are inserted." There were also cases of group crimes, bullying and domestic violence reported to have been committed with non-male genitalia.

    "Why is the male genitalia so special? The same applies to the violation of mental and physical boundaries. I believe that the crime of forcible sexual intercourse needs to include harm caused by objects other than male genitalia," pointed out Azusa Saito, a cl inical psychologist who is a member of the panel.

    Saito reported at a meeting last September that the results of a survey conducted on 3,000 men and 3,000 women revealed "no difference in the mental reaction of victims between the insertion of fingers or foreign objects into the anus or vagina and the insertion of male genitalia into the oral cavity, anus or vagina."

    Although this point was generally understood by the committee members, they are apparently still discussing whether it can be treated in the same way as the crime of forcible sexual intercourse, or whether a new crime category should be established.

    Miho Okada, director of Broken Rainbow-japan, which works to raise awareness and advocate policies to deal with sexual violence against sexual minorities, is seen in this provided photo. (Photo courtesy of Miho Okada)

    During the discussion, "risk of pregnancy" was raised as one of the reasons why only assault with male genitalia is covered in the crime. Saito said, "Of course, it is a serious issue. However, there is also a risk of damage to the body and organs from fingers and objects. I think it would be good to consider all of these as circumstances of more serious damage."

    Saito also said that creating a separate crime category "may result in a lighter penalty than the crime of forcible sexual intercourse. I think it would mean downplaying the violation of the body by fingers or foreign objects."

    Miho Okada, the 36-year-old director of Broken Rainbow-japan -- a voluntary organization that supports and raises awareness of sexual violence against sexual minorities -- who cooperated with the panel's hearing, said, "The law was revised in 2017, and the gender of the victim is no longer stipulated. The crime of forcible sexual intercourse was supposed to include acts that are not linked to reproduction. It is wrong for the law to make it seem as if sexual intercourse cannot take place without male genitalia."

    "Victimization by means other than male genitalia is a familiar form of sexual violence for sexual minorities, and also for everyone else. We need to end this culture of downplaying harm caused by objects other than male genitalia and provide equal assistance under the law to as many survivors of sexual violence as possible," she continued.


    The following is the contact information for consultations over sexual violence. (Both are available in Japanese.)

    Phone: #8891 (One-stop support center for victims of sexual offenses and sexual violence. This is a nationwide shortened number that will connect you to the nearest center.)

    Email: (Broken Rainbow-japan)

    (Japanese original by Miyuki Fujisawa, Integrated Digital News Center)

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