Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

Japan: Supreme Court Reverses View on Whether Obscene Intent Necessary for Crime of Forcible Indecency

(Dec. 5, 2017) On November 29, 2017, the Supreme Court of Japan reversed a nearly five-decade-old precedent, stating that no obscene intent is necessary for the crime of forcible indecency.  (Saiko Saibansho [Sup. Ct.] Nov. 29, 2017, Case No. 2016 (a) 1731, Courts in Japan website (in Japanese) (click on the two characters beside PDF icon to view).)

The Precedent and the Relevant Law

In 1970, the Supreme Court ruled that to convict a person of the crime of forcible indecency, intent to sexually excite oneself or satisfy one’s sexual desire was required.  The case concerned a male who was accused of threatening for two hours to pour sulfuric acid over the face of a female victim in the presence of his de facto wife at their home because he was angry at her, and forcing her to disrobe and stand naked for five minutes while he took photos of her to embarrass and insult her.  (Sup. Ct. Jan. 29, 1970, Case No. 1968 (a) 95, Courts in Japan website (in Japanese) (click on the two characters beside the PDF icon).)  The Sapporo High Court had convicted the accused without recognizing intent on his part to sexually excite himself or satisfy his sexual desire, stating the crime of forcible indecency can be admitted as long as the victim’s sexual freedom was violated.  The Supreme Court remanded the case to the High Court to determine if the accused had had such an intent and, if not, to determine if he might be guilty of some other crime.  (Id.)

The text of the provision on forcible indecency does not explicitly require such an intent.  Article 176 of the Penal Code states:

A person who, through assault or intimidation, forcibly commits an indecent act upon a male or female of not less than thirteen years of age shall be punished by imprisonment with work for not less than 6 months but not more than 10 years. The same shall apply to a person who commits an indecent act upon a male or female under thirteen years of age.  (Penal Code, Act No. 45 of 1907, as amended by Act No. 54 of 2007, art. 176, Japanese Law Translation website.)  Act No. 72 of 2017 amended article 176.  The phrase, “a male or female” was replaced with “another person.”  (House of Representatives website (in Japanese).)

The Recent Supreme Court Decision

In the 2017 case, the Supreme Court approved the lower courts’ decisions, which stated that requiring obscene intent for the crime of forcible indecency is not appropriate and, therefore, the 1970 precedent should be reversed.  In this case, a convict forced a girl under the age of 13 to perform sexual acts on him and groped her.  The convict claimed he had committed these acts for a financial purpose, without obscene intent.  (Sup. Ct. 2016 (a) 1731.)  According to a news report, he committed the acts because the person from whom he had tried to borrow money made providing such child-sexual-abuse photos a condition of the loan.  (Changed Precedent, “Sexual Intent Not Required,” Supreme Court Decided, MAINICHI (Nov. 29, 2017) (in Japanese).)

The Court explained that the change of precedent corresponds to the change in how society perceives sexual offenses, which has led to amendments to the Penal Code in recent years (Act No. 156 of 2004 & Act No. 72 of 2017) to make punishments for sex-crime offenders harsher.  (See Sayuri Umeda, Japan: Sex Crime Law to Be Amended, GLOBAL LEGAL MONITOR (Mar. 16, 2017).)  In the situation in question, the interpretation of article 176 must focus on the damage to the victim, not the intent of the offender, the Court stated.  (Sup. Ct. 2016 (a) 1731.)

Criminal law professor Makoto Ida was reported as stating that the 1970 decision had been heavily criticized, and there had been no court decision since that had acquitted an accused because of lack of sexual intent.  Therefore, the Supreme Court’s decision will not have any noticeable effect on forcible indecency cases.  (Changed Precedent, “Sexual Intent Not Required,” Supreme Court Decided, supra.)