Written By: Shigenori Matsui
Posted On: September 20, 2023
Barely one year has passed since I sent my final draft of Sex, Sexuality and the Constitution (UBC Press 2023) to the printer, but there have been several significant changes during this very short period of time. These changes do not affect my overall argument in my book: there is an urgent need to consider all legal issues regarding sex, sexuality, and family as matters of constitutional law and it is most appropriate to view all these constitutional issues as an issue of the right to sexual autonomy. And, although I focused on Japan to examine these issues, they do not affect my argument that the lessons we can learn from Japan should be seriously considered in other countries as well.
Yet, I believe that some details of the book should be updated, although I did mention in my original work that there was a high likelihood of change following publication. At least five significant changes have occurred: the passage of the LGBTQ People Respect Act, significant amendments to the rape provision, significant amendment to the law of parentage, the decision to allow abortion pills for artificial termination of pregnancy, and the further decline in childbirth rate. In this blog, I would like to add updates to my book.
- Enactment of the LGBTQ People Respect Act
With a significant increase in calls to add further protection for LGBTQ people, the ruling Liberal Democratic Party (LDP) finally decided to enact a statute calling for respect for LGBTQ people. In June, 2023, the Diet passed the Act to Promote Public Understanding toward Diversity Based on Sexual Orientation and Gender Identity, introduced by a private bill drafted by the LDP members. This Act purports to “foster the public willingness to accept diversity based on sexual orientation and gender identity, thereby contributing to the accomplishment of a tolerant society toward diversity based on sexual orientation and gender identify, by laying down the fundamental principle, clarifying the roles of the central government and local governments, and providing for the establishment of a fundamental plan and other necessary measures, toward promotion of public understanding of the diversity based on sexual orientation and gender identity” (s.1). The Act defines “sexual orientation” as “orientation toward partners based on romantic feeling or sexual feeling”, and “gender identity” as “one’s own consciousness of one’s sex’s affiliation including whether one has a different gender identity or the degree of difference” (s.2).
It then declares the fundamental principle that “there should be no improper discrimination due to sexual orientation or gender identity, based on the principle that every person should be respected as an indispensable individual equally enjoying the fundamental human rights, regardless of sexual orientation or gender identity, and we need to contribute to the accomplishment of a society which allows the people to coexist by mutually respecting the integrity and individuality of others” (s. 3). The central government is mandated to try to adopt and implement various measures to promote diversity with regard to sexual orientation and gender identity based on the fundamental principle stipulated in the previous section (s. 4), and the local government is mandated to do the same in their local jurisdictions in cooperation with the central government (s. 5). Private business operators are mandated to “try to promote workers’ understanding toward diversity toward sexual orientation and gender identity, by providing public promotion, improving underlying working environment, providing an opportunity to consult with others, and to cooperate with these government measures adopted by the central government and local governments toward sexual orientation and gender identity (s. 6). The central government needs to adopt the fundamental plan based on a cabinet decision and publish it for the promotion of comprehensive and planned enforcement of various measures to promote public understanding on sexual diversity with respect to sexual orientation and gender identity (s. 8). The central government is mandated also to promote research into the formulation of measures for promoting public understanding (s.9) and try to adopt necessary measures to promote a deeper knowledge of sexual diversity on sexual orientation and gender identity, by providing education, public promotion, and other measures, with private business operators and educational institutions mandated to try to adopt necessary measures (s.10).
The Act took effect immediately right after promulgation in the National Gazette on June 23, 2023.
There was a complicated background to the passage of this bill. The LGBTQ people and their supporters wanted the statute to prohibit discrimination against them and wanted to protect transgender people upon their own self-identification. Anticipating the 2023 summit meeting in Hiroshima, the Prime Minister Kishida decided to enact a statute to protect sexual minorities in Japan. Yet, the ruling party had a concern that the outright ban on discrimination might lead to significant changes in the society and might allow some men to enter into women’s toilet or public baths (where customers are supposed to take off their clothes and bathe in the hot water together) pretending to be transgender woman if we allowed transgender people to self-identify. As a result, the enacted statute does not carry any ban and merely mandated a respect for these sexual minorities. I also left unclear whether transgender people can decide for themselves to be transgender: they might require some kind of verification by professionals such as medical doctors. In the end, the word of “gender identity” is chosen over “sexual self-identification” and “sexual identity” without clarification to this point.
It is a far cry from what has been called for by LGBTQ people and their supporters. There is no legal ban on discrimination against them. Moreover, during the process leading to the passage of the bill, the ruling party made a compromise with some minority political parties to select ambiguous words in order to obtain their support. It also made a last-minute revision to call for “cooperation with family, local community, and other interested parties” in promoting the understanding of sexual minorities (s.6(2)). Many LGBTQ people and their supporters are concerned that this last-minute revision might allow the community to slow down or postpone the implementation of various measures to promote protection for sexual minorities, and may potentially withhold their cooperation altogether.
As a result, there are no significant changes to the rights of individuals with varying sexual identities and orientations. Same-sex marriage is still precluded, and transgender people are not free to change their sex or gender identification on the family registry. There is also no statue prohibiting private discrimination against sexual minorities, let alone more general civil rights legislation or human rights legislation. The introduction of the new statue is certainly progress, but it is still a baby step and there is long road ahead toward full acceptance of sexual minorities in Japan.
- Amendment to the Rape Provision
Secondly, with respect to the right not to be forced to have sex, the Japanese Diet passed the amendment Bill to Amend Parts of the Criminal Code and the Code of Criminal Procedure to add significant changes to rape provisions in Japan.
Japan used to ban forcible sexual intercourse with assault or intimidation against a female person as a rape and imposed the imprisonment term of no less than three years. Yet this provision was widely criticized as too narrow. It was meant to protect only female persons (sexual assault against a male person could be a forcible indecency but not a rape, carrying a much lighter sentence). It was only forcible sexual intercourse that was banned, meaning penal penetration of a vagina (other sexual conducts could not be a rape). It was only forcible sexual intercourse with “assault or intimidation” that could constitute a rape (if there was no assault or intimidation, then rape charge was impossible). Moreover, a criminal complaint of the victim was necessary for prosecutor to file a charge and there was a statutory limitation period for filing criminal charges. Although the courts came to add very liberal interpretations to all these requirements for rape, allowing conviction in all circumstances where there was no consent, still there was a fear that, unless the victim was physically assaulted or unable to resist or escape, a rape conviction could be impossible. Moreover, the imposed sentence for a rape was quite light (lighter compared even with robbery).
In 2017, the rape provision was significantly revised. The 2017 amendment changed the name of crime from “rape” to “forcible sexual intercourse, et al.” The 2017 amendment protected both men as well as women. The prohibited conducts are defined as “sexual intercourse, et al.,” meaning “sexual intercourse, anal intercourse and oral intercourse.” The covered conduct was thus greatly enlarged compared with the original one. The 2017 amendment also increased the punishment to imprisonment for no less than five years. The criminal complaint requirement was dropped and the statute of limitation for filing a charge was extended. Yet, still some sexual conducts, such as inserting fingers or objects into women’s vagina, were not covered. The “assault or intimidation” requirement still remained, with the possibility that the conviction might not be obtained if there is no physical violence or when the victim was not totally overpowered to refuse or run away. Many feminist groups thus called for further amendment to prohibit all sexual intercourse without consent.
Now, barely six years have passed, but the Diet already added further radical amendments to the Criminal Code in 2023. First, it changed the name of crime to “sexual intercourse, et al. without consent” (names of other sexual assaults were also changed).
As a result, now any “obscene act without consent” (s.176(1)), imposes criminal imprisonment for no less than six months and no more than ten years. This applies if the accused engaged in obscene acts by causing a situation which makes it hard to have an intention not to give consent, express it or to fulfill it or by taking advantage of such situation, due to one of the following conducts or circumstances or a similar conduct or a circumstance, regardless of whether there was a marriage relationship:
- Using assault or intimidation, or when the victim suffered either of them,
- Causing physical and mental impairment or when the victim is suffering from it,
- Providing alcohol or drugs or when the victim was influenced by either of them,
- Making the victim to sleep or lose clear consciousness, or when the victim is suffering from either of them,
- Leaving no time for the victim to have an intention not to give consent, express it or fulfill it,
- Causing fear or surprise by forcing the victim to face unanticipated circumstances or when the victim is suffering from fear or surprise from facing such a circumstance,
- Causing phycological trauma by abuse or when the victim is suffering from it,
- Making the victim to worry about the possible disadvantage resulting from the influence based on the status in economic or social relationship, or when the victim is suffering from such worry.
If the accused engaged in an obscene act by making the victim mistaken that the conduct is not obscene or identity of the person who was conducting or when the accused engaged in the obscene act taking advantage of such mistake, the same punishment will be imposed (s.176(2)). If the accused engaged in obscene conduct toward anyone under the age of sixteen, they should be subjected to the same publishment, provided that if the accused is born no less than five years earlier than the victim and the victim was under the age of sixteen but was no less than thirteen (s.176(3). This is comparable to sexual assault in other countries.
Similarly, now “sexual intercourse, et al. without consent” provides (s.177(1)):
Anyone who engaged in sexual intercourse, anal intercourse, oral intercourse, or inserted a part of the body (except for penis) or object into vagina or anus and was obscene (hereinafter cited as sexual intercourse, et al.) should be sentenced to imprisonment for a definite term of no less than five years, regardless of the marriage relationship, if the accused engaged in such acts by causing a situation that makes it hard to have an intention not to give consent, express it or to fulfill it or by taking advantage of such situation, due to one of the following conducts or circumstances listed in s.176(1), or a similar conduct or a circumstance.
If the accused engaged in a sexual intercourse, et al. by making the victim mistaken that the conduct is not obscene or identity of the person who was conducting or when the accused engaged in sexual intercourse, et al. taking advantage of such mistake, the same punishment will be imposed (s.177(2)). If the accused engaged in sexual intercourse et al. toward anyone under the age of sixteen should be subjected to the same publishment, provided that if the accused is born no less than five years earlier than the victim and the victim was under the age of sixteen but was no less than thirteen (s.177(3)).
S.176(1) is also applicable to anyone who engaged in obscene acts by taking advantage of the influence as a guardian against anyone under the age of eighteen (s.179(1)), and s. 177(1) is applicable to anyone who engaged in sexual intercourse, et al. taking advantage of the influence as a guardian against anyone under the age of eighteen (s.179(2)). In other words, no additional conduct or circumstance is required for conviction, if anyone who engaged in obscene conducts or sexual intercourse, et al. taking advantage of the influence as a guardian against anyone under the age of eighteen.
All the attempts to commit crimes stipulated in s. 176, s.177 and s.179 are similarly punishable as before (s. 180). If the victim died or was injured as a result of the crime stipulated in s.176(1), s.179(1), or these attempts, the accused will be punished by imprisonment for an indefinite term or less than three years (s.181(1) and if the victim died or injured as a result of the crimes stipulated in s. 177. S.179(2) or their attempts, the accused would be punished by imprisonment for an indefinite term or for less than six years (s.181(2)). If anyone committed a crime of robbery or its attempt and also a crime stipulated in s.177 or its attempt, or anyone who committed a crime stipulated in s.177 or its attempt and committed a crime of robbery or its attempt, then the accused will be punished by imprisonment for indefinite term or no less than seven years (s.241).
Thirdly, the Amendment created another crime of sexual nature toward minors, in addition to sexual assault. Thus, anyone who engaged in one of the following conducts for obscene purposes toward anyone under the age of sixteen (if the person under the age of sixteen is more than thirteen, then this provision is only applicable when the accused was born no less than five years earlier than the victim) should be subject to confinement for no more than one year or criminal fine of no more than 500,000JPY:
- Demanding meeting by using intimidation, deception or luring,
- Repeatedly demanding meeting despite the fact that the meeting demand was refused, or
- Demanding meeting by providing money or other benefit, proposing or promising it (s.182(1)).
Anyone who actually met for obscene purposes with anyone under the age of sixteen by committing the crime stipulated above should be subject to imprisonment no more than two years and fine no more than 1 million JPY (s.182(2)).
Moreover, anyone who demanded one of the following conducts from anyone under the age of sixteen (second item listed needs to be the conducts which are obscene), should be subject to criminal confinement for no more than one year and criminal fine of no more than 500,000JPY).
- Making that person to take a position of sexual intercourse, anal intercourse or oral intercourse and transmit its image, or
- In addition to the previous conducts listed, making that person to take a position that allows insertion of a part of the body (except for penis) or objects into vagina or annus or being inserted, position that allows touching or being touched with sexual parts (sexual organs, annal part, or other sexual parts (hip or buttock surrounding the sexual organ or annus), or position exposing sexual parts and transmitting its image (s.182(3)).
Fourth, the 2023 amendment extended the statute of limitation for filing prosecution for a crime of sexual intercourse, et al. without consent to fifteen years and a crime of an obscene act without consent to twelve years. But the period between the time of commission of crime and the time victim became eighteen years old should not be counted (Code of Criminal Procedure, s. 250).
The Act was promulgated on June 23, 2023, and is supposed to take effect 20 days after the promulgation. It was enforced from July 13, 2023.
The expansion of the sexual conducts covered has been one of the most important arguments of feminist groups for a long time and the 2023 amendment finally accomplished this expansion. The removal of “assault and intimidation” and its replacement of “without consent” has been also another important argument for a long time. The 2023 amendment finally accomplished this too.
This is certainly a wise decision since it defines the crime as sexual intercourse “without consent,” thus making it clear that any sexual intercourse without consent is unlawful. It listed, however, a number of specific conducts or circumstances where consent can be denied. As the text of the amended provision made clear, listed conducts or circumstances are not exclusive and instead are merely illustrative, since a similar conduct or circumstance can also qualify to deny consent. Yet, although this amendment clarified the requirement for a criminal charge, it may not be in the best interest of the victims, since it would be extremely hard to figure out what should be defined as a crime since the specific conduct or circumstance is listed as a requirement to punish the sexual intercourse, et al. without consent. It was much better to impose criminal punishment to anyone who engaged in sexual intercourse (with an expanded definition) without consent and list these specific conducts as illustrations for denying the consent in a separate section or subsection. Nobody can remember these listed conducts or circumstances and it also still leaves doubt as to whether these are the exclusive list.
Moreover, opposition to removing the assault or intimidation requirement was a reflection of a fear that the prosecutor will have greater difficulty in proving the absence of consent. It is much easier, it was believed, to prove assault or intimidation, than to prove that the victim did not give consent. It is unclear whether this fear was sufficiently alleviated. We must wait and see how this 2023 amendment will be actually enforced. If it is still deficient, then the Diet needs to come back again and add another revision.
- Amendment to the Law of Parentage
During my examination on the right to have a child in my original work, I briefly explained the law of parentage and argued that it is totally outdated and does not fit with the development of the medically assisted reproduction. In last minutes of 2022, the Diet came up with some revisions on the law of parentage.
First, it removed the mandatory waiting period stipulated in s.733 that only applied to women, that women must wait for 100 days after divorce to get remarried. The municipal government office can therefore now accept marriage applications without waiting for 100 days after divorce (s.740). Now a divorced woman can get remarried right after divorce, as was always the case for men.
Second, it revised the presumption of paternity for a child. Now, a child conceived by a wife during marriage is presumed to be a child of a husband of that marriage (s.772 (1)). When a child was conceived by a woman before marriage and was born after the formation of marriage, similarly a child would be presumed to be a child of a husband of that marriage.
For the purpose of the preceding subsection, a child born within 200 days after the formation of marriage, is presumed to be conceived before the marriage, and a child born 200 days after the formation of marriage and a child born within 300 days from the dissolution or cancelation of marriage should be presumed to be conceived during marriage (s.772(2)).
For the purpose of subsection 1, when a woman was married more than twice between the time of conception and a birth of a child, then the child is presumed to be a child of the husband of the most recent marriage before birth (s.772(3)).
When the child stipulated in the preceding subsection 3 is denied legitimacy by a father according to s.774, the “most recent marriage” stipulated in that subsection should be read as “most recent marriage (except for the marriage between a husband who denied the legitimacy of the child according to s. 774)” (s.772(4)).
With respect to a child whose paternity is to be decided by s. 772, a husband and a child can deny the legitimacy of a child (s.774(1)). The right of the child to deny legitimacy can be exercised by a mother who has a parental right (s.774(2)). For the purpose of subsection 1, the mother can also deny legitimacy to a child, except when the exercise of that denial right is apparently harming the interests of the child (s.774(3)).
When a paternity is to be decided according to s. 772(3), the former husband other than the father of the child who was married with mother during the time of conception of the child and the time of birth can deny the legitimacy of the child, except when that exercise of that denial right apparently harms the interests of the child (s.774(4)).
When the former husband exercised the denial right according to the preceding subsection, the other husband to be stipulated according to s.772(4) instead of s.772(3) then cannot deny the paternity to a child despite s.774(1)(s. 774(5)).
The amendment will take effect on April 1, 2024.
All of these are important revisions on the law of parentage. But from the perspective of the constitutional right to be recognized as legal parent, still the revised Civil Code does not have any guiding principle. It does not respect the wish of the parents or the best interests of the child. Still the law of parentage in Japan is not based on solid constitutional foundation but is a patchwork as a result of accommodating the various interests of conflicting parties. Especially disappointing is the absence of any effort to update the law of parentage in the light of technological developments. Evidently, the update is not reflecting the development of medically assisted reproduction technology although an increasing number of patients choose to have a child using this technology.
- Abortion Pill
In Japan, abortion is prohibited by the Criminal Code. As a result, the pregnant woman as well as the doctor who performed an abortion were criminal punished. Although there was no explicit exemption, several exceptions had been accepted because of the general defense provisions, including in a medical emergency to save the life of a pregnant woman.
Yet, the Mother’s Body Act allowed “artificial termination of pregnancy,” practically the same procedure as an abortion, under certain conditions. The procedure to artificially terminate the pregnancy at this point needed to be performed by designated doctors who had experience and were working in hospitals or clinics satisfying the hospitalization requirement.
It was only permissible on the text of the statute if the pregnancy would cause a threat to the life and health of the pregnant woman or if the pregnancy was caused by a rape. It was also necessary to obtain the consent of her husband. Therefore, on the face of the statute, legitimate reasons for asking for artificial termination of pregnancy were very limited similar to many countries in the world.
Yet, in reality, these requirements had been very loosely interpreted by practicing doctors and the artificial termination of pregnancy was virtually free from restriction in the early period of pregnancy, because the economic reason could be a legitimate ground to fear for a threat to life and health of the pregnant mother and the decision was utterly left to attending doctors. In most cases, designated doctors have been happy to accept the allegation of pregnant woman that the continued pregnancy and a childbirth will case a threat to her life or health. There was no need to corroborate her allegation and there was no review. Although the consent of the husband was required, the government had interpreted that this consent was not necessary when a pregnant woman is not married or when gaining consent from husband is very difficult. Moreover, there was no method to check the authenticity of the consent form submitted by a woman. Anyone can sign and there was no way to verify or check the reliability of a consent. As a result, when a pregnant woman came to ask for artificial termination of pregnancy with a consent form, then most doctors have been happy to provide one.
In my book, I argued that this huge discrepancy between the statute and reality is troublesome and the absence of the constitutional right of a woman to demand abortion/artificial termination of pregnancy is questionable.
Moreover, there was also a serious restriction on how to perform artificial termination of pregnancy: it needed to be performed surgically. In other words, the abortion pill was not approved by the government, and the doctors or patients could not use it, no matter how early in the pregnancy the termination was performed.
However, for the first time, the Ministry of Health, Welfare and Labor approved the abortion pill in 2023. It is a Mefeego Pack, a combination of mifepristone and misoprostol. As a result, now the medical termination of pregnancy has become possible from 2023. This was a huge blessing for pregnant women who want artificial termination of a pregnancy.
Yet, there are still significant hurdles left. First of all, the termination needs to be provided by designated doctors. It is still an artificial termination of pregnancy that needs to be justified under the Mother’s Body Protection Act. Second, it is only available for pregnant women within 63 days of pregnancy (9 weeks). Third, the pill needs to be administered in a hospital or clinic satisfying the hospitalization requirements and the patients who take a second dosage must be observed in such hospital or clinic (must be hospitalized or observed in the hospital) until the fetal sac is discharged. In other words, online prescription is not allowed. The government kept these requirements as a result of the fear of possible complications. Therefore, any personal import by the patients is not allowed and pharmacies or drug stores cannot offer it.
The government might reconsider some of these requirements in the future if practical evidence demonstrates that fears of complications are unfounded. Yet, for now, the availability of a medical abortion pill is still only a small piece good news for pregnant women who want to have an abortion/artificial termination of pregnancy.
- Further Decline in the Child Birthrate
In 2022, the number of the child born in Japan further dropped to 770,747 and the total fertility rate (TFR) for women dropped to 1.26, further decrease from 1.3 in 2021, 1.33 in 2020, and 1.36 in 2019. The total population of Japan as of June 1, 2023, is estimated at 124,520,000, a further drop from 124,752,000 in January, 2023. It was a loss of 570,000 people from June of the previous year. This further decline has made the necessity of increasing birth rates as the most urgent national agenda for the government. Prime Minister Kishida now emphasizes the necessity of taking measures “totally in a different dimension” to promote the childbirth. Although many are doubtful of any possibility of success, it is imperative to adopt more definitive and strong measures to welcome and support childbirth while keeping in mind the basic principle of sexual autonomy as a constitutional command.
We are living in a rapidly changing world. Sex and sexuality definitely bring up issues and call for significant changes to the current status quo in Japan and beyond. Although none of these changes affect my overall conclusion and main arguments in my original work, it is still better to have a knowledge of these changes after the publication of my book. I will try to keep updates if there are any significant changes in the future.
 Shigenori Matsui, Sex, Sexuality and the Constitution (Vancouver, UBC Press 2023).
 Seiteki shikō oyobi gender identity no tayousei ni kansuru kokumin no rikai no zoushin nikansuru hōritsu (Act to Promote Public Understanding toward Diversity based on Sexual Orientation and Gender Identity), law no. 68 of 2023, https://kanpou.npb.go.jp/20230623/20230623g00132/20230623g001320018f.html.
 As a result, several competing bills were introduced into the Diet to offer alternative provisions. Yet, in the end, the ruling party decided to go ahead with the support of some opposition parties with the bill that was passed in the end.
 Keihō oyobi keijisoshouhō no ichibu wo kaiseisuru hōritsu [Act to Amend Parts of the Criminal Code and the Code of Criminal Procedure], law no. 66 of 2023, https://www.moj.go.jp/content/001398501.pdf .
 Japanese Criminal Code distinguished between imprisonment with hard labor and confinement with no hard labor in the past, but this distinction is abolished in 2022, and both will be integrated into just “criminal confinement” without any hard labor from 2025.
 Minpōtō no ichibu wo kaiseisuru hōritsu [Act to Amend Parts of the Civil Code], law no. 102 of 2022.
 Ministry of Health, Labor and Welfare, Iwayuru keikō chuzetuyaku “mefeego pack” no tekisetsu shiyoutō nitsuite [On the Proper Use of Artificial Termination of Pregnancy Pill, called Mefeego Pack], https://www.mhlw.go.jp/stf/seisakunitsuite/bunya/kenkou_iryou/iyakuhin/topics/infertility_treatment_00001.html.
 Ministry of Health, Labor and Welfare (MHLW), Jinkō doutai souran no nenji henka [Annual Change of Total Population] (2022), https://www.mhlw.go.jp/toukei/saikin/hw/jinkou/geppo/nengai22/dl/h1.pdf.
 MHLW, Jinkō doutai souran (ritsu) no nenji suii [Annual Change of Population Change (Percentage), (2022), https://www.mhlw.go.jp/toukei/saikin/hw/jinkou/geppo/nengai22/dl/h2.pdf.
 Prime Minister’s Remark in the Press Conference (March 17, 2023), https://www.kantei.go.jp/jp/101_kishida/statement/2023/0317kaiken.html.
 It is disappointing to note, however, the gender gap index ranking of Japan dropped nine positions at 125th out of 146 countries, according to a World Economic Forum report released in 2023. World Economic Forum, Global Gender Gap Report 2023, (June 2023), https://www3.weforum.org/docs/WEF_GGGR_2023.pdf, at 11. Evidently, the status of women in Japan has not improved and rather further deteriorated. Unfortunately, it is extremely hard to see any possibility of progress.