Where there is a prior relationship between the woman and the defendant, to the extent that it might be possible to imagine that the woman enjoyed the defendant's company even though that moment might be fleetingly brief, Japanese legal discourse on rape demands proof of force and resistance. In so doing, the law constructs the male subject as having the power to disregard a woman's lack of consent if she does not physically fight back. Women are not constructed as freely consenting subjects. The legal notion of consent in Japanese rape law accommodates not only submission or acquiescence under circumstances of gross power inequalities, but also in situations in which a woman clearly signals unwillingness but does not physically resist her attacker to the extent that she is overcome. 1 A woman's consent is, therefore, essentially meaningless. She has no voice to express non-consent because she is reduced to a sexualised body, always already presumed to be consenting. Sheila Duncan (1995:340) states this idea succinctly:
The law has constructed a fiction to provide space for the satiation of the sexual desires of the male subject. Such violence constructs a further space for the identity and subjectivity of the male subject, enabling him to treat this other, across a range of areas, as body without subjectivity for the male subject's sexual gratification.
The 11 rape and attempted rape cases (Cases 10-20), discussed at length in this and the following chapter, provide the basis for investigating how judges approach complaints of rape that do not conform to tsūjō rape stock stories. A summary of each of these cases will be followed by a thematic analysis of the cases, supplemented with material from additional indecent assault and sexual harassment cases in particular, where the judicial comments are relevant to the discussion. While the primary focus of the chapter is on rape, my aim is to identify the dominant constructions of sex, gender and sexuality that are used to make sense of competing accounts of sexual assaults and to claim 'truth' in Japanese legal discourse. In each of the 11 cases, the defendant and the woman had spent at least a few