How is rape law understood by the judiciary in Japan? What kinds of knowledge count? The definition of rape in the Japanese Penal Code (translated in Appendix 1) is broad and, therefore, provides considerable room for interpretation in the determination of cases. However, within Japanese legal circles there has been little discussion regarding the nature of the crime and its central elements. Legal scholar George Koshi (1970:140-141) outlines the key aspects of rape law as follows: (1) penetration of the vagina by the penis, (2) without the consent of the victim, (3) achieved by the perpetrator's use of force or intimidation. To these elements should be added mens rea, that is, where the perpetrator intended to have intercourse against the victim's will (as opposed to consent).
Although mens rea is not mentioned by Koshi, it is an accepted legal principle in Japanese law, and the legal discussions in a number of cases analysed in this study state that it is a necessary element of the crime of rape (see Case 9; Case 10 Watanabe; Case 11 Takeda; Taniguchi 1970:5-9). Article 177 is based on the assumption that consent and mens rea can be determined on the basis of the perpetrator's violence and coercion. When questions concerning consent and mens rea were raised in the sample of cases, the legal points of argument focused on the defendant's degree of force and intimidation, which was defined primarily in the context of the victim's resistance. In other words, the woman's resistance to the defendant's violence acts as a proxy for determining consent and mens rea in the majority of ambiguous cases - cases which Japanese judges regularly described as containing evidence that was fushizen (unnatural).
The legal commentary preceding a rape case detailed in Hanrei Jihō (Case 13 Matsumoto: 111) states that a minority of legal scholars argue that consent rather than the degree of violence and threat should be the central question in determining the crime of rape. However, the dominant legal opinion is that consent and the victim's will are unreliable standards on which to determine whether rape took place because they rely on the subjective opinion of the victim and are thus likely to lead to appeal challenges (Tsunoda 1991:27). The majority of scholars, therefore, concur that it is necessary to focus on the 'objective' standard of the behaviour