The discursive production of sex, gender and heterosexuality as interlinking natural biologically based systems is rarely called into question either inside the Japanese courtroom (Hata 1990:50; Hayashi 1990:31) or beyond feminist circles. Similarly, Anne Allison notes that in academic circles there is resistance to thinking about sexuality outside medical and physiological discourse. Despite great popularity, the world of sexuality as it is confi gured and played out in entertainment industries associated with sexual services (mizu shōbai) is overwhelmingly regarded as trivial and meaningless, not a significant aspect of Japanese culture and, therefore, not an appropriate field for research (Allison 1994:145-148). However, social constructionist theorists argue that, on the contrary, sexuality can only be understood as socially constructed meanings and, indeed, can only be 'performed' once these meanings are learnt.
This chapter explores aspects of the historic and culturally specific discursive constructions of sexuality and gender in Japan in order to shed light on the societal silence surrounding the subject of sexual violence, and to suggest that these constructions shape and structure judges' 'hunches' (see Experimentalists' arguments in Chapter 1). Prostitution constitutes a common thread through much of this discussion, partly because it has played a central role in consolidating constructions of 'natural' male sexuality and partly because the prostitute and the woman who has been raped have much in common. They are both ascribed a sexuality, or sexualised in a way that sets them apart from 'ordinary' women. As Carol Smart (1989:39) notes, when a woman makes a claim of rape she confesses to a sexual experience that sounds very much like a 'soft-porn' script. Her body, through the telling, is imagined in this framework and each body part becomes explicitly sexualised. The story, as it is described in minute detail to police, to lawyers and to judges, can be imagined as pornographic fantasy, about pleasure, and thus, like the prostitute, she becomes suspect. Like the prostitute, she is at least temporarily disqualified from the category of women who can be protected - who are protected precisely because they do not 'look like' prostitutes.