Today I am going to be speaking about how Japanese women have been struggling with sexual harassment and domestic violence form the legal perspective, then about how we envision and are planning the next stage.

First of all, unlike the laws in the U.S. and other countries, Japanese law does not say anything about sexual harassment and domestic violence. This means that Japanese society does not recognize the concepts of sexual harassment and domestic violence. As a result of the legal attitude and of similar social attitudes, we have not yet coined appropriate Japanese terms for these concepts. As some of you know, sexual harassment was given a Japanese acronym, "sekuhara" and domestic violence has a few Japanese terms, onen of which is "fufukan-bouryoku". A rough translation is "violence between spouses", a term that does not reveal the perpetrator of the violence. When a man acts violently toward a woman, and then "fufukan-bouryoku" is used to describe it, the violence of the male is concealed. Another term for domestic violence is "katenai-bouryoku". This means family violence. One of the problems of this term is that in the 1970s or 1980s, we used this term for adolescents who beat their parents, sometimes beat to death. In 1992, the term of domestic violence was introduced to Japan by a Japanese woman working on this issue in the U.S.. We finally decided to use the English term, domestic violence, and the Japanese, "violence by a husband or boyfriend" interchangeably.

You might wonder how, without any law addressing these problems, we can raise legal questions in courtrooms or elsewhere. I shall first explain to you our legal strategies.

With respect to the issues concerning sexual harassment, in 1989, when we filed the first case in the Fukuoka District Court, we exercised a tort clause in the Civil Code. Article 709 of the Civil Code says: "A person who violates intentionally or negligently the right of another is bound to make compensation for damage arising therefore." In sexual harassment cases, the responsibility of the employer is very important in the aspects of assurance of monetary recovery and maintaining a sexual harassment-free working environment.

With respect to the employer's responsibility, Article 715 of the Civil Code says:

"A person who employs another to carry out an undertaking is bound to make compensation for damage done to a third person by the employee in the course of the execution of the undertaking; however, this shall not apply, if the employer has exercised due care in the appointment of the employee and in the supervision of the undertaking or if the damage would have ensued even if due care had been exercised. 2. A person who supervises the undertaking in place of the employer shall also assume the responsibility mentioned in the proceeding paragraph."

These articles have been widely interpreted in various cases, so we created our strategies based on these articles. In order to use the concept of tort, we had to point out that sexual harassment should fall into the category of "violation of right". The legal team for the first case established the fact of the plaintiff's adverse and harsh treatment based on her sex by defendants, her immediate boss and the company. We argued that if she had been a man, she would not have been treated as she was and that what had happened to her should be recognized as sex discrimination clearly banned by the Constitution. Thus, the right guaraanteed to her by the Constitution had been violated. To support our argument, we also pointed out that women should be given equal treatment to men under the U.N. Convention on Elimination of All Forms of Discrimination against Women, which Japan ratified in 1985.

So, the difficult task was, and still is, how to persuade judges that sex discrimination was a violation of women's human rights. Interestingly enough, when sex discrimination is very pervasive in the workplace or society, it becomes "normal" or "natural" and, therefore, is hardly considered unlawful. When we filed the first case, people reacted with perplexity as to why everyday occurrences that they took for granted would be unlawful. Because of this, we submitted to the court legal materials from the U.S. and Canada where sexual harassment had been defined as sex discrimination and many precedents had been set. Outside the court rooms, on TV or in magazines, men were grumbling "Even though sexual harassment is considered as being something wrong abroad, we are living in a different and unique cultural society, and we Japanese don't necessarily go along with foreign cultures." This was very common. In the court room, we could argue for the universality of human rights and against the violation of human rights in general, and sex discrimination in particular. Sometimes our arguments succeeded and sometimes not.

What kind of cases did we lose? I think there is a clear pattern to the cases in which judges did not recognize a violation of women's human rights. In all the cases, judges could not see the plaintiffs as victimes. Judges seem to have their own unique image of a "correct" victim of rape, sexual harassment, or sexual assault. They thought a victim should shout and cry out for help when she was being sexually violated, should not act rationally, nor come back again to the scene of an incident even if she had to come back, nor should she ever show aggression. If a plaintiff did not mesh with their imagined victim, they would not recognize her as a victim and, therefore, she would be declared a liar.

In the first court case we won, although most of the plaintiff's allegations were accepted by the judges, the plaintiff was criticized by the judgees for having been too assertive and aggressive. They said that some of the conflicts between the plaintiff and one of the defendents, her boss, were fueled by her aggressive behavior and, therefore, she was awarded only half of the damages claimed. The truth was that she sometimes acted bravely to protect herself from the defendant's relentless abuses. If she had not done so, she would have cracked up and even been forced from the workplace earlier than she was. She had the right to fight back to survive. Generally speaking, the Japanese, especially men with power, feel uncomfortable with assertive or outspoken women. It seems to me that these judges were feeling uncomfortable.

In subsequent sexual harassment cases, plaintiffs were sexually assaulted and in one case nearly raped.

In the attempted rape case, the plaintiff was a divorced woman in her forties with a young child whom she had to rear by herself. The attempted rape occurred in the afternoon inside the workplace. After the incident, she did not leave the place immediately. Instead she continued to work as usual. Moreover, she came back to work the next day. She was afraid that being absent would result in her losing her job. Besides, she was pleased with her wage and benefits and it would have been difficult to find another job as satisfactory. Two or three days after the attempted rape, she told a friend about the incident. He later became a witness for her. Notwithstanding, the judge wrote in his decision that he could not believe her story because of what he consider her strange behavor after the attempted rape. His decision came from the idea that all rape victims react in the same way.

In the other sexual harassment case, which occurred in Yokohama, the judges--two males and one female--decided in favor of the defendant. They conceded that the alleged incident could have been a crime of sexual assault and, therefore, the plaintiff could have resisted the defendant (her immediate supervisor) more strongly, immediately screamed for help, and easily escaped through an unlocked door. The court went on to say that they did not believe her story because she had managed the situation so well. She had explained to the court why she did not shout or cry out. She said that she had quickly examined her situation and had concluded that she was not sure of successfully escaping from her attacker and also she was afraid of inciting him by shouting or crying out. In response to her explanation, the court wrote that it surely would be unreasonable and unexpected for a woman in her situation to manage as she did. The court no doubt expected her to behave in the way it imagined a "real" victim would behave.

I currently have a rape case, claiming monetary damages, in the Supreme Court. In 1995, in the district court, a female judge heard the case and ruled against my client. The judge pointed out in her written opinion that she had not believed the plaintiff's story, for almost the same reason as that in the Yokohama case. The judge wrote that the plaintiff had neither cried out for help not tried to escape from the defendant, her immediate supervisor. The rape occurred inside the workplace after normal working hours. The judge pointed out that the plaintiff was familiar with the layout and know there was a door close to the place where the alleged rape occurred. She, the judge, also pointed out that the plaintiff knew there were houses outside and she could have screamed for help. In the appellate court, judges again rejected the plaintiff's allegation by accepting the defendant's story about being in a romantic relationship with her and have her consent for sexual intercourse. The plaintiff categorically denied his assertion of a romantic relationship, saying that she had been forcibly hugged and kissed by the defendant two months before the alleged rape. The judges pointed out that she had come back to the workplace not only the day after the alleged forcible hug and kiss but also the day after the alleged rape. Therefore, they could not believe any part of her story. They said she had behaved in a very strange way as the victim of those attacks.

So the question is: "why do judges, male and female alike, continue to hold a stereotypical image of a victim of sexual violence?".

I'll provide you with some reasons.

1. There is no education about gender issues for judges, public prosecutors, and law enforcement offices before they take office and while they are in office. In law departments of universities, very few classes deal with gender issues. There are sometimes special lectures and seminars in these departments, as well as in the Institute of Legal Research and Training. The Institute, run by the Supreme Court, is where all students of law who successfully pass the bar exam must study for two years.
2. In addition to the lack of gender-sensitive education in the legal field, there is a thought that gender issues or theories of sex equality are considered dangerous. I heard of an episode in which a female law graduate had expressed to her male professor her aspiration to study the legal theory of Professor Catharine MacKinnon. He strongly advised her to abandon her plan if she did not wish to lose her promised future as a legal scholar.
3. Unlike the U.S. or western countries, Japan has maintained an old-fashioned rape law under which a victim is still required to show evidence of having resisted. Also, a victim's tacit consent or the rapist's misunderstanding of consent is still accepted as an effective defense by the legal system.
4. Most victims are, in fact, barred access to the legal system for remedy in a criminal case or a civil case. There is no rape shield law in Japan, so a victim's privacy is not protected. Moreover, rape must be reported to police within six months after the occurrence in order to accuse a rapist. Few victims report a rape and few victims file lawsuits asking monetary recovery. Therefore, judges most often see rape victims with physical injuries that have been caused by strangers with weapons. And thus, their image of "real" victims is continually reinforced.
5. Media and pornography also reinforce the same image. Male students in universities in law departments are not immune from the influence of those materials that saturate the nation.

In order to make the situation surrounding sexual harassment better, we must ask the Government to at least fix the above-mentioned problems. We really need a new law addressing this issue. Under the tort clause, only monetary damages are available for victims usually after they have lost their jobs and/or have been severely harmed emotionally or physically. The tort law is not helpful in preventing and stopping sexual harassment immediately. The first court case clarified that employers were responsible for the prevention of sexual harassment and the protection of its victims. Another defect in our tort law is that it does not recognize the concept of punitive damages. As a result, awarded damages have ranged from a low of 800,000 yen to a high of 1.5 million yen. To more employers this is a drop in the bucket. And thus, they are not financially motivated to create sexual harassment-free working environments.

I'd like to turn to the issue of domestic violence. When we discussed this issue in 1992, we realized that there was no official data about domestic violence, let alone a policy addressing this problem. In 1996, I heard that the Tokyo Municipal Government had a plan to do a survey on domestic violence this year. The central government, however, still shows no interest in the subject. The only available national data focussing on domestic violence is the outcome from a 1992 survey conducted by a women's group to which I, myself, belong. Even though the research was not demographically and randomly designed, we could see at the time of the research how pervasive domestic violence was in Japan. When we conducted the research, there were many myths about domestic violence, one of which was that domestic violence existed only in the United States. By the way, when we first raised legal questions about sexual harassment, we heard the same allegation, that sexual harassment was a problem in America, not in Japan. The research revealed that Japan had a problem of domestic violence as well. Because of the strong partiarchal structure of Japanese society, victims have been forced to keep quiet, and society as a whole has acted to effectively silence them. We also recognized that domestic violence cut across class lines. Our survey turned up a huge range of male abusers, from blue and white collar workers, to police officers, to Buddhist priests, to physicians and professors of outstanding universities.

As I mentioned, Japan has not yet any particular law, like Violence Against Women Act (VAWA) in the U.S., addressing this problem. In addition, existing laws have not been appropriately applied to domestic violence cases. For example, the Penal Code can be utilized to deal with physical violence cases. But I experienced many cases where wives were blamed for calling police officers for their "private" quarrels. There is a Japanese proverb saying, "Even a dog is not interested in a spousal quarrel". In fact, some police officers upon responding to my client's 110 call, quuoted it to her and left without helping. A month later, she stabbed her abusive husband in the chest near his heart with a kitchen knife and was consequently arrested and convicted for causing bodily harm.

The tort clause also can be applied to domestic violence cases when a victim wants to claim monetary damages. One of the problems of suing is that a plaintiff has the burden of proof. I had a divorce case in the Tokyo High Court. My client asked damages caused by her abusive husband in the course of their 15-year marriage. She had lived in a small conservative town and had been abused by him almost daily. She hesitated to see a doctor when she suffered bodily injuries because of the shame and blame involved. But after some of the most abusive incidents, she received medical treatment and was given medical certificates describing her injuries and treatment. At her divorce trial, she testified about her husband's violent behavior and her bodily injuries, but she could not exactly recall when and how she had been abused on all occasions. The court awarded 50,000 yen for her damages, but only for the injuries for which she had gotten medical certificates. It said that she had not proved that other injuries had actually been caused by her husband and that she should have substantiated them by physical evidence. The court required the theory of burden of proof usually applied to a tort trial, but it seemed to me that the court burdened her excessively.

Family Court is one of the places where domestic violence cases routinely appear in the legal system. As some of you know, about 90% of divorce cases in Japan are settled outside the courts by submitting mutual agreement papers to a municipal office. Therefore, divorce cases that come to Family Court are usually complicated and involve domestic violence. Neither civil courts nor family courts have cared about how they should treat domestic violence cases. Even in a family court, there are no experts who know how to deal with this issue. In our legal system, the petitioner for divorce must first go through a mediation process with a committee in Family Court. The committee is composed of three mediators, one male, one female, and one judge. But unless difficult legal questions are posed, the committee is operated by the two law mediators who are selected from the community. They are nominally paid, so people who become mediators are usually people who don't need money and have plenty of time, ie, people from the conservative upper class. Many of them are in their fifties, sixties and sometimes seventies. It is very rare that they are aware of the issue of domestic violence. As a result, they represent society's so-called moral standard, which is not favorable to the victims of domestic violence. The two mediators often reflect society's convention: the man behaves like a master and the woman like a servant; they are playing the role of a traditional family.  The petitioners are not only offered reasonable and necessary advice, they are also forced to accept the societal moral standard. These circumstances are not much different in district courts where cases are determined byy judges who have the same limited understanding as personnel in the family courts.

I think that one of the reasons why our legal system cannot appropriately deal with domestic violence lies in the nature of the system itself. The system started in the Meiji era, the latter 1890s. It was originally designed to create and promote the Emperor system. The existing basic laws, the Civil Code and the Penal Code, were issued in those days and formed the basic ruling structure of the society. At the same time, these laws set up the moral standard, the most important value of which was to serve and perpetuate the Emperor system. It is a purely male-dominated system, typically patriarchal and hierarchical in structure. Legally and philosophically, the Japanese legal system derived from the Emperor system. Therefore, our system has an inherently anti-female cast.

After World War II, Japan revised its Constitution, but did not eradicate the Emperor system. In fact, Chapter I of the new Constitution concerns only the Emperor. Fundamental human rights and administrative, legislative, and judicial systems all follow the chapter on the Emperor. I think that the fundamental structures of the Japanese society and legal system are still patriarchal.

As I mentioned, the Japanese criminal justic system has rejected recognizing domestic violence as a crime. Furthermore, our criminal justice system has validated a husband's "legal" right to rape his wife simply because she is his wife. In fact, the word "his" accurately means that he legally possesses her in spite of what the Constitution and the Civil Code say. here, marital rape is not a crime of rape. The Penal Code simply says "A person who forcibly or threateningly has sexual intercourse with a woman should be punished as having committed a crime of rape." However, courts and legal scholars have interpreted and continue to interpret this clause to mean that "a legally married wife" should be excluded from the definition of a woman in the code as regards the rape law. Therefore, a wife cannot be "legally" raped by her husband even though she was "actually" raped by her husband. So, a marriage registration is a husband's license for rape. This is why elderly Japanese women actually used to call sex with their husbands a "duty" (in Japanese, "otsutome"). Even if wifes do not know the Penal Code, they know well its consequences for them. They must accept whatever sexual demands their husbands impose on them because the legal system allows it. It is easy to understand how this justification for marital rape encourages men to act violently in the domestic sphere and guarantees that right.

Not only in criminal cases but also in divorce cases, courts have endorsed the legitimacy of marital rape. In 1986 in a district court in the Tokyo area, there was a case in which a wife sued for divorce on the grounds that her husband had frequently raped her. In refusing her claim, the judge determined that because she had refused to have sex with him, the man had a right to force sexual intercourse because as a healthy man in his forties, he was still sexually active. It was determined that she was at fault for not assuming her "legal duty" as a wife, and he was not to be blamed for forcing sex. This kind of logic makes men conclude that if raping a wife is legal, beating a wife certainly cannot be a crime.

A poll conducted by a men's weekly magazine asked men if they had compelled their wives to have sex against their will. Seventy percent of the respondents said "YES".

Another example of how our legal system remains indifferent to the problem of domestic violence is that there is no law dealing with restraining orders or orders for protection for victims of domestic violence.

Trapped by a whole legal system which does not work for them, Japanese wives are easy targets for domestic violence. Society reflects the attitude of the legal system which reinforcese the view of society.

Before the Beijing Conference on Women in 1995 women were largely silent about the attitudes of society and the biased law concerning the issue of violence against women. After the conference, however, Japanese women, having been exposed to international movements against violence of women, started to speak out.

A women's group conducted a survey on victims of sexual violence and revealed how poorly and harshly they had been treated by the legal system and society as a whole. The group demanded the Government eliminate the problems they had discovered. In order to achieve this goal, more women's groups have to include the issue of violence against women in their agendas.

In conclusion, Japanese women still have a long way to go and have just taken their first step. The changing of the legal system, especially the basic law like the Penal Code, requires a long time. But I don't think this should be an excuse for maintaining problematic, and more precisely, an anti-women's human rights legal system. I can, of course, see some positive changes in the legal system. Law enforcement departments in some cities have started units for victims of violence against women. We hope similar units will be created in other cities and towns. But we must recognize that trained personnel are needed to make them effective.

Another positive change occurred on Okinawa where local women formed a rape crisis center after the notorious rape of a school girl by three American soldiers. One of the center's first actions was calling for the revision of the rape law.

Unfortunately, the vast majority of society is seemingly indifferent to this issue. I think that Japanese people must recognize how the issue of violence against women has been treated outside Japan and how very important the issue is not only for women but also for men and for Japanese society as a whole.

© 1997, Yukiko Tsunoda, 1-36-13-305 Takada, Toshima-ku, Tokyo 171, phone (03) 3983-7522, fax (03) 3983-7293.

(translation by Vicki L. Beyer)

Temple University Japan