Judicial Narratives on Trial: Constructions of Sex, Gender and Sexuality in the Japanese Courtroom

Abstract

This thesis examines a neglected area in studies of both criminal justice and gender relations in Japan: judicial decision-making in Japanese cases involving sexual violence. The silence surrounding sexual violence has been reinforced by a lack of official attention to this area. Sexual violence was placed on the political agenda in Japan only in the last few years. An examination of judicial decision-making in cases of sexual violence is critical to the process of formulating effective legal strategies in such cases. This study also contributes to feminist analyses of gender relations in Japan by making visible common sense and often unarticulated assumptions about the 'nature' of sex, gender and sexuality. The purpose of this thesis is to account for the patterning of judicial decision-making in cases of sexual violence in Japan. It focuses on a sample of judgments of rape cases in particular and asks why the judges made the sorts of decisions that they did. To understand the process of judicial decision-making in Japan I argue that three extra- legal factors need to be considered. First, the culture of eroticised violence in Japan sustains and perpetuates a 'rape script' or dominant narrative of rape which frames judicial perceptions of sexual violence. I argue that judicial decisions are shaped by and reinforce the biological understanding of sex, sexuality and gender which are constituted in the 'rape script'. Second, the 'rape script' inscribes the feminine body as culpable and as such facilitates the notion of victim precipitation in cases that do not conform to dominant narratives of rape. Third, the legal culture in Japan structures the judicial community in such a way that encourages a high degree of homogeneity and conformity in decision-making within the judiciary. I argue that in 'ambiguous' cases these three elements serve to disqualify, exclude or silence women's alternative narratives of rape. In this thesis I demonstrate that judges separate cases into two categories: those that conform to common sense understandings of rape and those that do not. This process of separation structures the ways in which rape is interpreted and clarifies the legal question of whether force is central to the determination of rape. I argue that the necessity to prove force was used is mitigated in cases that correspond to perceptions of 'normal' rape situations'. In cases that do not conform to the dominant 'rape script' the focus of the trial shifts to an examination of the woman's character and behaviour and the question of force becomes central in defining rape. By focusing on how judge's decide 'ambiguous' cases this thesis highlights judicial constructions of heterosexual and gender relations in Japan. Exposing these common sense understandings and the contradictions and gaps they contain provides a space in which to explore the possibilities for resistance and the articulation of alternative narratives.