By MISHA CADE
In a breakthrough victory for the #MeToo movement in Japan last week, the Ministry of Justice has agreed to include “sexual consent” in their amendment of the Penal Code pertaining to sexual offenses. If approved by the Cabinet, “Forcible Sexual Intercourse” （強制わいせつ罪）will be rephrased to “Nonconsensual Sexual Intercourse” （不同意わいせつ罪）to help specify the illegality of any sexual act committed without explicitly expressed consent.
Until a call for change was organized by activist groups back in 2017, the law had remained untouched since the Meiji Era; for over a hundred years, forced anal and oral penetration were not considered a form of rape, and men were not acknowledged as potential victims of sex crimes. Although the first revision marked a significant advancement for gender equality, survivors were still required to provide evidence of resistance, such as scars or bruises, to prove that the act was non-consensual. This perpetuates the archaic assumption that the majority of assault cases occur through brute force –– the reality is, over 80 percent of assailants personally know their target, and they weaponize their position of power to manipulate them into sexual relations. That is why this second attempt to implement sexual consent within the legal framework is monumental: not only will it eliminate the burden for victims to “prove” the assault, but it will recognize that people who are either under the influence or underage would not be capable of consenting. As Japan’s national age of consent currently stands at 13, the lowest among G7 nations, this could bolster lawmakers' efforts to raise it to 16 years old. Could the second time be the charm?
Although this is undoubtedly a celebratory moment, it is important to take this time to call for more radical changes. Survivors bite their tongues and drip blood from their mouths because it is safer than risking total social exile… so how will the Ministry of Justice wipe clean their red stained hands? Just last December, Mina Chiba, one of the actresses who spoke out against Director Sion Sono for sexual assault, committed suicide in her home. She was 36 years old. What about Shiori Ito, the journalist turned refugee who was forced to flee Japan from the excessive backlash and death threats she received after speaking up about her rape by former prime minister Abe Shinzo’s cohort, Noriyuki Yamaguchi? Not only did the police initially pressure her not to press charges regardless of the concrete video evidence she had, they dropped them entirely after government intervention. And speaking of betrayal, where’s that long-overdue apology to comfort women?
As revisions are underway, we must look beyond the legal framework of consent because it is incapable of classifying some of the daily abuse that survivors endure as a criminal offense; asking for consent is deeper than a legally binding verbal contract, and alternatively, giving consent is more than “agreeing” to sex. As MacKinnon wrote in her article “Rape Redefined” (2016), “the presence of consent does not make the interaction equal”. It is true that on an individual level, sexual violence can occur regardless of one’s gender or sexual orientation. But on a structural level, specifically within the heteronormative context of Japan, rape and its threat work to police women’s bodies and maintain their acquiescence:
“Don’t wear that skirt, you will get groped on the train.”
“Don’t walk around at night, it’s dangerous.”
“Don’t go there, don’t talk about this, don’t act like that. You’ll give him the wrong idea.”
In effect, women are held responsible for men’s transgressions. The idea that a man’s behavior is volatile and that their unfulfilled sexual desire can erupt into an uncontrollable surge of violence is a rape myth called the “steam-boiler model” –– like a boiler, they will “explode” when the pressure is too high. At its most flammable level, think Elliot Rodger, the incel who murdered six people in California out of frustration with his own virginity in 2014; or the Odakyu Line femicide that occurred just two years back where Yusuke Tsushima stabbed a female university student and injured ten others because he wanted to “kill happy looking couples and women” after being rejected on dating services.
For this, women are aware that it is sometimes more rational to “consent” to sex in order to curb his outbursts. Internalizing such narratives can lead to the routinization of rape, or the disassociation of women from their own victimhood that results from habitually catering to men’s libidos. Robin West writes that “her will becomes a function not of her desires but of his desires… [she] gains survival, but she sacrifices self-sovereignty.” That is why regularly practicing proper consent beyond its legal framework is radical: it brings these issues to light to be scrutinized; it forces us to question the power dynamics in our individual relationships; and it can grant autonomy for people to make decisions for their own bodies. It is an everyday form of resistance that we can practice to demand political transformation.
Like braces on crooked teeth, the hope is that implementing the notion of sexual consent will force structures to shift into place, creating a foundation for better gender equality policies in the future. The problem is, the teeth have become so severely misshapen and contorted, at this point, it may just be easier to knock everything out clean. Consent cannot thrive without equality, and women are still made to be fundamentally subordinate to men: Japan still has the lowest female political representation among OECD countries; there are no top female editors in major media outlets; over half of working women are employed in non-regular employment; and only 0.7 percent of perpetrators of sexual assault become indicted. There are multitudes of injustices to reconcile on top of a mountain of historical institutional sex inequality and decades of betrayal –– it is difficult to say consent will fix it all. So today, we should celebrate having won this battle. But tomorrow, we will not settle for the bare minimum of human rights. Even with the blood stains on our mouths, we must continue to speak up. As the Black, queer, and feminist Audre Lorde has famously written: “Your silence will not protect you”.
Misha Cade is a PhD student at the Graduate Program on Global Society, The University of Tokyo.