Public Welfare, Artistic Values, and the State Ideology: The Analysis of the 2008 Japanese Supreme Court Obscenity Decision on Robert Mapplethorpe
Obata, Yuri, Pacific Rim Law & Policy Journal
Abstract: On February 19, 2008, the Japanese Supreme Court delivered a decision declaring that a collection of photographs by the late American photographer Robert Mapplethorpe did not violate obscenity laws in Japan. The fact that the Japanese Supreme Court publicly found close-up and detailed images of male genitalia in Mapplethorpe's work no longer obscene perhaps makes the decision a landmark one since 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. However, close reading of the 2008 Mapplethorpe decision reveals the Court's uninterrupted interest in maintaining a boundary between art and obscenity, and also in preserving the doctrine of the public welfare as a fundamental principle regulating obscenity. The new approach to restricting obscenity by the 2008 Mapplethorpe Court is so narrowly constructed that its ability to further deregulate images of genitalia and sexual intercourse is utterly limited. In this study, the 2008 Mapplethorpe case and the court decisions are analyzed, and a brief overview presented of landmark cases of obscenity in Japan. There follows a discussion of two phenomena important to the 2008 Mapplethorpe decision: 1) the public welfare doctrine, and 2) the relation between obscenity and the state ideology of cultural identity. The discussion explores the values and beliefs that support the Court's effort to restrict sexually explicit expression in Japan. Overall, this paper finds that the decision appears innovative but still supports the longestablished rationale of the Court for continued regulation of obscenity.
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. …