Japan debates bill redefining rape to include non-consensual intercourse

Days after being raped, Megumi Okano knew that the attacker would likely escape punishment. Megumi, who uses “they” as a personal pronoun, knew the man and where to find him. However, they also knew that Japanese authorities were unlikely to consider the incident as rape. As a result, Megumi, a university student, decided not to report the incident to the police. “As I couldn’t pursue [justice] that way, he got to live a free and easy life. It is painful to me,” Megumi says.

However, change may be on the horizon. The Japanese parliament is currently debating a landmark bill to reform the country’s sexual assault laws, marking only the second such revision in a century. The bill covers numerous changes, but the most significant one would redefine rape from “forcible sexual intercourse” to “non-consensual sexual intercourse.” This change would effectively make legal room for consent in a society where the concept is still poorly understood.

Currently, Japanese law defines rape as sexual intercourse or indecent acts committed “forcibly” and “through assault or intimidation” or by taking advantage of a person’s “unconscious state or inability to resist.” This definition contrasts with many other countries, which define it more broadly as any non-consensual intercourse or sexual act—where no means no.

Activists argue that Japan’s narrow definition has led to even narrower interpretations of the law by prosecutors and judges, setting an impossibly high bar for justice and fostering a culture of scepticism that deters survivors from reporting their attacks.

“In the days afterwards Megumi – a law student – pored through the penal code and case precedents and realised what had happened would not meet court standards of “assault and intimidation”.”

The new law would explicitly outline eight scenarios where it is difficult for the victim to “form, express, or fulfil an intention not to consent.” These include situations where the victim is intoxicated with alcohol or drugs; subject to violence or threats; or is “frightened or astonished.” Another scenario appears to describe an abuse of power, where the victim is “worried” they would face disadvantages if they do not comply. The age of consent will also rise to 16 years, and the statute of limitations will be extended.

Some rights groups have called for more clarity on the scenarios, saying they are too ambiguously worded. They also fear that they make it more difficult for prosecutors to prove the charges. Others have said the statute of limitations should be extended even further, and that there should be more protection for survivors who are minors.

Nevertheless, if passed, the reforms would mark a victory for those who have long lobbied for change.

“The very fact that they are changing even the title of this law, we are hoping that people will start this conversation in Japan on: What is consent? What does non-consent mean?” says Kazuko Ito, vice-president of the Tokyo-based Human Rights Now.

However, time is running out. The upper house of the Diet, Japan’s parliament, must pass the new law by 21 June, but it is currently embroiled in a debate over immigration. Missing that deadline would throw the sex assault reforms into uncertainty. Activists last week denounced the delay as “unacceptable” and called on lawmakers to take action immediately.

But the reforms address only one part of the problem, say activists, whose call for change stretches well beyond the courtroom. Sexual assault is still a taboo subject in Japan and has gained national attention only in recent years in the wake of high-profile cases such as Shiori Ito’s court battle, former member of the Self Defence Force and sexual assault survivor Rina Gonoi’s public statements, and the Johnny Kitagawa exposé.

Part of the problem, Kazuko Ito says, is that generations of Japanese have grown up with “a distorted idea of sex and sexual consent.”

Japan should offer more financial and psychological support for sexual assault survivors, says lawyer and rights advocate Sakura Kamitani. But the attackers should also receive help, she adds. “Sex crimes have such a high recidivism rate, we must focus on prevention, otherwise there would be more and more victims.”

But the more important task at hand now, activists say, is ensuring the reforms are passed and enacted, encouraging survivors to report cases.

“If this becomes a superficial change and doesn’t actually save victims, it would be devastating to people,” says Ms Ito.

Megumi says they would consider reporting their attack to the police if the law changes – but not immediately.

“I kind of succeeded in settling my feelings already. I think it is too hard to put myself into that serious position of the ‘first penguin’,” they say, using a Japanese term for the first person to take the plunge into something new.

Instead, Megumi, who identifies as gender-fluid, is focusing on campaigning for sexual assault survivors and sexual minority rights, and hopes to start a law firm to help these groups.

“I am relieved that I now see some hope. Many are starting to realise that the current situation we are in is distorted and wrong.”

“I believe things are going to change faster and more significantly than we think if everyone joins in and works together. My message [to everyone] is: ‘If you think something is wrong, let’s change it together.'”