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Home > Penn Carey Law Journals > ALR > Vol. 19 (2023-2024) > Iss. 2 (2024)

 
University of Pennsylvania Asian Law Review

Larissa Truchan

Abstract

On June 16, 2023, the Japanese government passed a law to partially amend the Penal Code that explicitly outlines eight scenarios prosecutable as the crime of rape that make “it difficult for the victim to form, express, or fulfill the intention not to consent.” This article will reveal that the June 2023 amendment does not criminalize all “non-consensual sexual intercourse,” as its text suggests, but is premised on defining coercive circumstances that may interfere with a victim’s presumed duty to demonstrate their “intention not to consent.” As a result, Japanese courts will continue to possess the subjective power to determine whether the circumstances presented by the perpetrator are coercive enough to make “it difficult for the victim to form, express, or fulfill the intention not to consent” in rape cases where the victim is unable or unwilling to demonstrate their “intention not to consent” that fall outside the scope of the eight prosecutable scenarios. U.N. Special Rapporteur reports, the Committee on the Elimination of Discrimination Against Women (the “CEDAW Committee”) jurisprudence, and CEDAW General Recommendations on the topic of rape will be examined to clarify international rape legislation standards. The use of consent in Japan’s past and present Penal Codes, regional rape legislation standards, international criminal tribunal standards, and legal scholarship will be analyzed. It will ultimately be recommended that the Japanese government further amend the rape provision in its Penal Code to criminalize all non-consensual sexual acts, and that the international community explicitly clarify and codify international rape legislation standards in an optional protocol to CEDAW on violence against women to ensure universal compliance.

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