Sexual Violence and the Law in Japan

By Catherine Burns | Go to book overview

6

Markers of truth

Silencing women in the court

Stories of sexual assault are assessed and evaluated according to a number of particular standards or benchmarks, which are assumed to be valid indicators of truth and blameworthiness. The primary markers of truth are: strong physical resistance as discussed in the previous chapter; the purity of the woman, primarily assessed in terms of sexual inexperience; evidence of significant shock and distress; promptness in reporting the sexual attack; and a consistent, comprehensive and clear description of events before, during and after the sexual assault. These markers of truth, however, are mediated by the stock stories of tsūjō rape. In other words, they take on particular significance and meaning in cases of fushizen rape when corroborating evidence is minimal. In such cases, the legal argument is not merely concerned with the question of whether the woman consented to sex or not. In order to adjudicate and sentence 'appropriately', the moral blame-worthiness of the woman must be interrogated. Former Supreme Court Justice Taniguchi provides the rationale:

victims themselves may easily respond to the criminal's seductions (hannin no sasoi) and create opportunities for crime, or even though victims could easily escape they do not seriously attempt to do so. It may be said that a sex crime is an extension of sex play (momoiro yugi) and for this reason defence lawyers say that when it comes to fighting cases in court, rape cases focusing on the question of consent are the easiest to win.

(Taniguchi 1970:6)

What are these 'opportunities for crime' that women may create and, thus, be held accountable? The cases analysed indicate that the primary markers of blameworthiness are: consenting to go to the site where the offence took place; consuming alcohol; previous sexual experience; and provocative behaviour, language and clothing. This chapter focuses on the way in which judgments consider these standards of truth and blame-worthiness to produce what Sheila Duncan refers to as 'mythological constructions of woman as Other'. These mythological female figures are:

-110-

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Sexual Violence and the Law in Japan
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Tables x
  • Series Editor's Foreword xi
  • Acknowledgements xii
  • 1 - Legal Storytelling and Sexual Violence 1
  • 2 - Hegemonic Masculinity and Guilty Feminine Bodies 19
  • 3 - Confronting the Japanese Criminal Justice System 44
  • 4 - Credibility in the Court 67
  • 5 - 'In Truth She Was Probably Very Drunk' 84
  • 6 - Markers of Truth 110
  • 7 - Subversive Stories and Feminist Strategies 131
  • 8 - Conclusion 159
  • Appendix 1 163
  • Appendix 2 165
  • Notes 169
  • Bibliography 180
  • Index 194
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