Abstract
The lay judge system in Japan—now 8 years old—has produced various changes in the criminal justice system. One of the strongest and clearest impacts of the lay judge system has been seen in sex crime cases. Unlike the jury system in the USA, lay judges decide not only verdict but also sentencing, and the sentences in sex crime cases have been increasing. It seems that there has been a great “gap” between what lay people think is the proper sentence for sex offenders and the opinions of professional judges. In this chapter, I will discuss how and why this “gap” has been seen especially in sex crime cases. Also, there are new issues for victims of sex crime as they now have to be faced with lay judges who might be their neighbors. I am going to discuss what roles lay judge trials will play to improve (or endanger) various supports for victims of sex crime at trial stage.
And I will also discuss the possible impacts of the Lay Judge System on the Penal Code reform regarding sex crime. The goal of this paper is to find out how the Lay Judge System has changed and will change the criminal justice policy for sex crime in Japan.
Professor of Criminal Procedure and Crime Policy at Hakuoh University, Faculty of Law, Tochigi, Japan. This paper is based on my presentation at the 6th Conference of the Asian Criminological Society in Osaka in June 2014. This paper is also part of the research supported by Grant-in-Aid for Young Scientists (B) “Research on Sex Crime and Lay Judge Trials: Issues in Trials, Impacts on Sentencing, Corrections and the Criminal Justice Policy for Sex Crime” (4/2011–3/2014).
I would like to show my sincere gratitude to Professor Jianhong Liu and Professor Setsuo Miyazawa for providing me this great opportunity.
This is a preview of subscription content, log in via an institution to check access.
Notes
- 1.
Not only Japan but also some other countries have problems of crowded trains; however, it seems the groping problem is most serious in Japan. This chapter does not aim to find out why, but it is an interesting and important topic. Though groping is a very serious issue in Japanese society, there are not many academic publications on groping. One of the first comprehensive academic publications on Chikanis Akiyoshi Saito, Otoko Ga Chikan Ni Naru Riyuu [The Reason Why Men Become Gropers], East Press Publication, 2017.
- 2.
The famous crime theory, shaming and reintegration, by John Braithwaite may mean to mainly apply to wrongdoers though. See John Braithwaite’s Crime, Shame and Reintegration, Cambridge University Press 1989. On the other hand, some people also feel “shame” to become victims, as they blame themselves for not being able to avoid the victimization. These unreasonable responses are commonly seen among victims of sex crime. And these tendencies are especially strong in Japan.
- 3.
At the ACS conference in Osaka, I had quite an interesting conversation with students who were from Taiwan. Their research interests were in support system for victims of sexual harassment. They found the warning signs (posters) at railway stations for groping problems in Japan were wired, as many posters said something like “If you see groping problems, please take courage to say something and save the victim.” They told me that many posters in their country (Taiwan) said like “If you are victimized of groping, please ask for the help.” The Japanese version may sound more supportive to victims, but, in fact, it may be an evidence that victims of groping in Japan have much more difficulties to speak up, so the passengers are expected to save the victims.
- 4.
For details of the lay judge system, please visit the website of the Japanese Ministry of Justice, http://www.moj.go.jp/ENGLISH/issues/issues03.html (last visited 1/31/2012).
- 5.
I should also add that, as the criminal procedure in Japan is not divided into fact-finding phase and sentencing phase (the same panel, either in lay judge trials or bench trials, decide both fact finding and sentencing in consecutive process), there is a risk where victim inputs can influence fact-finding decision. See Mari Hirayama, “How Criminal Trials in Japan Will be Changed?-Impacts by the Victims Participation System and the Lay Judge System” [Keiji Saiban Ha Donoyouni Kawarunoka-Higaisyasanka Seido To Saiban In Seido no Impact], Aoyama Gakuin Law Review, Vol. 51 No.1/2, (2009), pp. 585–606.
- 6.
As for the research discussing the sex crime cases tried by lay judge trials, see Mari Hirayama, “Saiban-in Saiban to Sei Hanzai” [the Lay Judge Trials and Sex Crime], Ritsumeikan Law Review, 323/328, pp. 668–691 (2010), and Sawako Hirai, “Sei Bouryoku Hanzai to Saiban-in Saiban-2009 nen no Jirei kara” [Sexually Violent Crime and the Lay Judge Trials- Cases tried in 2009],” Seinan Univ. Law Review, (2010) pp. 225–243.
- 7.
There are very few researches on “Jidan” in sex crime cases. See, for example, Akita Kazue, Tatoe Jidan demo Yurusarenai. Teikyo Dai Rugby Buin Rape Jiken [Even if a Jidan is Settled, the Offender must not be Forgiven. A Rape Committed by Students in Teikyo University Rugby Sport Team], Monthly Magazine POST, Vol. 30 No. 8 (1998), pp. 46–47.
- 8.
One exception is death penalty cases. When the court decides to send a defendant to death row, the court considers “Nagayama Criteria.” These criteria were used in Nagayama case in 1968, where a 19-year-old man killed four people. The Nagayama Criteria plays a significant role for courts to choose the death penalty or indefinite sentence; however, they are not sentencing guideline. As for the Nagayama Criteria, see Daniel A. Metraux, “The Nagayama Criteria for assessing the Death Penalty in Japan: Reflections of a Case Suspect”, Southeast Review of Asian Studies, Volume 31 (2009), pp. 282–289.
- 9.
http://www.moj.go.jp/keiji1/keiji12_00090.htm. (last visitd 7/31/2017)
- 10.
As for the controversial debate regarding the legislation at the Congress and among the public, see Tomohiro Osaki “Conspiracy Law ramrodded through Diet as opposition reckons with ruling camp tactics”, The Japan Times, June 15, 2017.
- 11.
In December 2004, the Amended Penal Code 2004 was enacted. In that amendment, new sex crime provision for “gang rape” (Penal Code 178–2; punishable no less than 4 years of imprisonment with work) was added. The amendment 2017, however, is the first reform to change actus reus of sex crime.
- 12.
For these amendments, see Takako Maesawa, “Overview of the Bill to Amend Penal Code Regarding Sex Crime” [Seihanzai Kitei Ni Kakaru Keiho Kaisei An No Gaiyo], National Diet Library Research and Information No. 962 (May 2017), pp. 1–13. Available at http://dl.ndl.go.jp/view/download/digidepo_10350891_po_0962.pdf?contentNo=1 (last visited 6/30/2017).
- 13.
For the English translation of the Japanese Penal Code, I referred to the website “Japanese Law Translation” by the Ministry of Justice at http://www.japaneselawtranslation.go.jp/law/detail/?id=1960&re=02&vm=04 (last visited 6/31/2017).
- 14.
Supplementary Provision 9.
- 15.
http://www.moj.go.jp/shingi1/keiji_kentoukai_saibaninseido_top.html. (last visited 7/31/2017)
- 16.
http://www.moj.go.jp/content/000112006.pdf. (last visited 7/31/2017)
- 17.
Id. pp. 4–5.
References
Abe, Y. (2006). Waga kuni ni okeru jido gyakutai no shomondai: niche bei ni okeru jido gyakutai no teigi nit suite [Issues in Child Abuse in Japan: The Definition of Child Abuse in Japan and the US]. Jorunal of International Buddhist University, 44, 71–88.
Hirayama, M. (2012). Gender to saiban in seido: seihanzai saibanin saiban no kadai [Gender and the lay judge system]. In The Japanese Assocaition of Gender and the Law (Ed.), Gender and law: Freeing from violence (pp. 107–122). Tokyo: Kajyo Shuppan Publication.
Hirayama, M. (2013). Saiban in seido no eikyo, kadai, tenbo: seido shiko go 2nen kan no seihanzai saiban in saiban no kento wo tsujite tou [Impacts, Issues and prospects of the lay judge system: through reviewing sex crime cases tried by lay judge trials for 2 years since it’s introduction]. Japanese Journal of Law and Society, 79, 85–105.
Ji-ji Tsushinsya. (2010, May 21). In 95% of All Trials, Lay Judges have attended post-verdicts press conferences.
Nagata, M. (2013). Beikoku karano tayori seihanzai, houritsu to keibatsu no nitibei hikaku: genbatuka wo susumetekita America Nihon ha? [Letter from the US, sex crime, comparision on law and punishment in Japan and the US: US has been promoting tough on sex crime in the US. how about Japan]. Newsletter by the Support and Education Center for Safety and Health for Women, 38, 30–38.
Sankei Newspaper. (2014, September 27). Midori Matshusima. Considering harsher punishment on sex crime: Interviewing Minister of Justice.
The General Secretariat of the Supreme Court of Japan. (2010). Heisei 21 Nen Ni Okeru Saiban In Saiban No Jissi Jyokyo Toh Ni Kansuru Shiryo (The Report on the Status on the Lay Judge System in 2009). http://www.courts.go.jp/saikosai/vcms_lf/80804004.pdf. Last visited 31 March 2017.
Watanabe, T. (2015). Jidoh poruno no keiji kisei: kaisei no keii to ronten [Regulatigehng child pornography by criminal law: The process and issues of revisement]. Criminal Law Journal, 43, 35–44.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer International Publishing AG
About this chapter
Cite this chapter
Hirayama, M. (2018). A Future Prospect of Criminal Justice Policy for Sex Crimes in Japan- the Roles of the Lay Judge System There. In: Liu, J., Miyazawa, S. (eds) Crime and Justice in Contemporary Japan. Springer Series on Asian Criminology and Criminal Justice Research. Springer, Cham. https://doi.org/10.1007/978-3-319-69359-0_17
Download citation
DOI: https://doi.org/10.1007/978-3-319-69359-0_17
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-69358-3
Online ISBN: 978-3-319-69359-0
eBook Packages: Law and CriminologyLaw and Criminology (R0)