Academic journal article Washington International Law Journal

Public Welfare, Artistic Values, and the State Ideology: The Analysis of the 2008 Japanese Supreme Court Obscenity Decision on Robert Mapplethorpe

Academic journal article Washington International Law Journal

Public Welfare, Artistic Values, and the State Ideology: The Analysis of the 2008 Japanese Supreme Court Obscenity Decision on Robert Mapplethorpe

Article excerpt


In Asai v. Japan, the Japanese Supreme Court declared that a collection of photographs by the late American photographer Robert Mapplethorpe did not violate obscenity laws in Japan.1 As the Court stated, the photo book in question, which included clear and detailed images of male genitalia, possessed artistic value as a whole.2 Considering the social consensus of current Japanese society regarding sexual morality, the work neither appealed to the prurient interest of the audience nor violated sexual morality.3

The present-day restriction of sexually explicit expression in Japan respected the obscenity standard from the 1957 precedent, the Lady Chatterley's Lover decision, which ruled that the translation of D. H. Lawrence's Lady Chatterley's Lover was obscene.4 According to the Court, "to be obscene the literature in question must be such that it is harmful to the normal feeling of shame, it excites and stimulates sexual desire, and runs counter to good moral concepts regarding sex."5 The Chatterley Court also asserted that even if the social concept concerning sex was undergoing changes, "it cannot be denied that there still exists in any society a demarcation which cannot be overstepped and that the demarcation is still being honored by the general public."6

Since the Chatterley decision, some adjustments were made by the Court to modify and improve the way the Chatterley standard defined obscenity.7 In the following decades, the Court ruled that the translation of Marquis de Sade's Travels of Juliette, and a museum catalogue that included Mapplethorpe's photographs were obscene.8 In summary, it has been the rationale of the Court that a clear and detailed depiction of genitalia and/or sexual intercourse constitutes obscenity. 9 Such depiction appeals to the audience's prurient interest, and offends the sense of shame and disgust; thus, the artistic value or any other associating factors of the expression cannot keep the expression from being held obscene.10

The reality of society's acceptance and tolerance of sexually explicit images in Japan in the late 2000s are inconsistent with the Court's rulings- translations of Lady Chatterley's Lover and Travels of Juliette, and the uncensored Mapplethorpe photo book, are in print and available in regular local bookstores.11 Obviously, the development of computer technology has been influencing the availability of sexually explicit images in Japan, making Hustler, Playboy, and other sexually oriented publications from the United States accessible on the Internet. 12 Also, the openness of the Japanese mass media to the dissemination of sexual images is well known.13

The fact that the Supreme Court of Japan publicly found explicit images of male genitalia in Mapplethorpe's work no longer obscene perhaps makes the decision an important one, especially since the Court had been reluctant to scrutinize the Chatterley standard14 for more than fifty years. The plaintiff of the 2008 Mapplethorpe case, Takashi Asai, who had sued the Customs Office for seizing and confiscating the Mapplethorpe photo book at Narita International Airport in Tokyo in 1999, said the 2008 decision "could change the obscenity standard used for banning foreign films that depict nudity and for censoring photographs in books."15

However, a close reading of the 2008 Mapplethorpe decision reveals the Court's uninterrupted interest in maintaining and reinforcing the boundary between art and obscenity, and preserving the doctrine of the public welfare as a fundamental principle regulating obscenity.16 The new approach to restricting obscenity by the 2008 Mapplethorpe Court does not seem to extend its ability to deregulate many of explicit images of genitalia or sexual intercourse. Moreover, it could possibly become a means of strengthening the restriction of such sexually explicit images, similar to the Miller standard from Miller v. California,17 which had in fact played a role in strengthening the restrictions on sexually explicit expression in the United States. …

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