UC Irvine

In 2017, Japan underwent the first major amendment of its rape law in 110 years. The reform focused on revising the definition of rape and its sentencing practice to extend legal protection and reflect victim experiences in the law. But one of the most controversial agendas of the reform – mitigation or elimination of the requirement of force or intimidation in Japanese rape law was left unmodified after multitudes of negotiations among legal scholars, law practitioners and activists. Although the requirement is thought to exclude or disqualify particular rape scenarios, it is valued as a practical criterion to assess consent. To examine the various claims of the interpretation and application of the force and intimidation requirement in practice, this study analyzes publicly available court judgements in rape cases since the reform. The findings suggest that trial judges use the force requirement for three primary purposes: 1) to specify the degree of sufficient unlawful force, 2) to evaluate (the lack of) victim resistance, and 3) to assess the defendant’s knowledge of lack of victim consent. The study suggests that the non-guilty verdicts examined in the study hinged on the exceptionally high standard to demonstrate lack of victim resistance and defendant’s knowledge of lack of consent. The paper contributes to a discussion of further legal reform by highlighting the ways the current rape law enables inconsistent judicial decisions in rape cases driven by limited and biased understanding of sexual assault. It situates the findings within the social, cultural and legal context of Japan.