Intersections: Gender, History and Culture in the Asian Context
Issue 7, March 2002

Competing Narratives of Romance and Rape:
A 'Marital Damages' Trial in Japan


Catherine Burns

     
  1. A legal trial is not merely a site for distinguishing between lies and true accounts of 'what really happened'. Witnesses may perceive and make sense of events differently and their varying self-believed descriptions of 'what happened' may all correspond with reality. Furthermore, the trial involves their recollections of what happened, that is, how the event is remembered often long after the incident occurred. In addition, the rules of proof (e.g. admissibility and relevance) regulate and limit the evidence which can be shown and the stories which can be told and how they may be told, where they start and where they finish. Within this constrained framework both legal parties must select or, more accurately, construct particular 'facts' which then constitute a narrative that, like all successful narratives, aims to seduce.[1] Rather than using coercion, an effective story sustains the interest of the audience, invites the audience to temporarily suspend judgement and appeals to the audience's desires and knowledge of the world. More specifically, a convincing story is one in which a simple lineal version of events can be extracted from the complex often confusing context surrounding the case.[2]
     
  2. Narrative is an important mode of communicating common-sense understandings of the world and value judgements involving often implicit evaluations of good and bad behaviour. According to legal narrative scholars,[3] these narratives are as relevant or influential in the courtroom as they are in society more generally. The credibility of witnesses or the plausibility of their stories are evaluated on the basis of their familiarity or intelligibility in terms of their 'fit with the stock of social knowledge' transmitted through narratives.[4] The more closely a story corresponds with our perceptual map of how things are in the world the more likely that story (witness) will be deemed credible. Therefore, narrative scholars argue that judicial adjudication is much more complex than the positivist legal conception of a process of applying abstract legal rules and principles to objective facts.
     
  3. As social practices, narratives also constitute part of their own meaning and therefore like any social practice they are likely to reflect, sustain and reproduce dominant cultural meanings and power relations.[5] Legal scholar Richard Delgado, argues that the narratives or 'stock stories' produced by insiders, those in a position of dominance or power, affirm ingroup identity and construct a 'shared reality in which its own superior position is seen as natural'.[6] These stock stories not only justify prevailing power relations and hierarchies but their very construction is partially constituted by or bounded by the exclusion of alternative accounts of social reality. The power exercised in such constructions is all the more forceful when endorsed by the authority of the law. Legal narrative scholars tend to share a concern with retrieving the stories of 'outsiders', that is, marginalised groups who are likely to have experienced oppression and devaluation by dominant discourses and whose consciousness is other than that of the dominant group. These alternative narratives or 'counterstories' may be subversive to the extent that they reconstitute a set of social relations to disclose new meanings.
     
  4. This paper aims to retrieve the story of a rape that could not be accommodated by Japanese law. In March 1993, one day before the expiry of the six month time limit on reporting a rape [kokuso hihan], Endô Michiko (a pseudonym) filed a complaint of rape against her boss. The case was investigated, but then rejected by the prosecutor. Endô took the next step to have the prosecution's decision re-examined but again the case was rejected. Endô therefore decided to initiate civil proceedings requesting compensation for 'marital damages'. The defendant argued that there was no basis for compensation because the prosecutor's action inferred no rape had taken place. The case therefore focused on whether the sexual intercourse constituted rape, as would have been the case in a criminal court. In legal terms, finality was reached with a Supreme Court decision of not guilty in July 1997.
     
  5. My analysis of the case is based on interviews with Endô-san and two of her lawyers, and the full trial transcripts which included the defendant's statements and counter claims and the judgements from each stage of the legal proceedings. The judgements are narratives written by the judges which explain their accepted version of events and rationale for the final decision. As there is no jury system in Japan[7] (a civil law country) judges are entirely responsible for determinations of legal 'fact', guilt or innocence, and sentencing. In cases involving crimes punishable by death or imprisonment for more than one year a panel of usually three judges presides over the hearings.[8] Although it cannot be argued that the law was wrongly applied in Endô-san's case, I suggest that the judicial decisions cannot be adequately understood using the conventional or legal positivist explanation of judicial adjudication. Rather, I argue that the outcome was shaped by extra-legal factors which reinforced the construction of two oppositional accounts of what happened: a story about romance and a story about rape. Like most rape cases there was little corroborating evidence and so the crux of the trial hinged on his word against hers. The following is a summary of their competing narratives.


    Case details: his story
     
  6. The defendant, a married man in his mid thirties with one child, managed a fast food outlet on the outskirts of a country town. The plaintiff, a woman also in her thirties and married with four children, was a part-time employee in the shop. She was a woman with a little extra time on her hands looking to enjoy life. She liked to flirt, share dirty jokes with the rest of the workers and she became infatuated with the defendant. She expressed this attraction towards him on a number of occasions: she lent him a copy of the 'pornographic' French film Betty Blue, she said she wanted to have his baby, and she would find excuses to be alone with him. Over a period of three or four months, he had on several occasions attempted to embrace and kiss her. She would fend him off, protesting; playing hard-to-get in what became their game of seduction, their love affair.
     
  7. On the night of the alleged rape, she found another excuse to be alone with him after all the other workers had left. He grabbed her passionately, but she struggled quite strongly so he stopped. As he walked to his car, she ran after him and pleaded with him to stay. They kissed, he suggested going back inside to have sex and she nodded consent. The fact that she changed her mind at this point constituted a recognisable pattern of flirtation and protest which structured their romantic liaison. While her behaviour was not unusual he did find her fickleness hard to understand.
     
  8. Back in the shop, he suggested they lie on a bench in the restaurant but she suggested going upstairs because it would be more private. Once upstairs she protested a little, but he was overcome with passion and they had sex. Afterwards, she started to cry and locked herself in the bathroom. This response was very confusing and he became irritated and so was eager to leave. When she rang him the next day, he had had enough and told her their 'love affair' was over. As a result of this rejection and perhaps because she also regretted the affair, she became vindictive: she made a false accusation to cover up her adultery which came to the knowledge of her husband some months later when he realised he had contracted a sexually transmitted disease.


    Case details: her story
     
  9. On each of the occasions the manager attempted to touch her, she clearly and strongly refused him. However, as her employer she felt the need to remain pleasant to him. Her husband's income was not high and in the small town where they lived there were few jobs which would have similarly suited her schedule. On the night of the incident she remained in the shop after the other workers had left in order to talk to the manager about changing her shifts to accommodate her new timetable at a hairdressing school. The defendant did not appear to want to discuss the matter, but asked if she would stay on and do some paperwork. When she sat down, he pounced on her, knocking her off the chair and onto the floor where she struggled against him for approximately fifteen minutes. This particular incident was more serious than his previous attempts to touch her.
     
  10. Once outside the shop, her feelings of shock and confusion began to dissipate. She became angry and demanded an apology. They argued and then he seemed to calm down a little and suggested they go back inside. She thought he was going to apologise or provide some explanation for his actions—possibly even propose marriage. As a Christian she believed firmly in the idea of sex only within marriage and therefore she thought his lack of control might be explained in terms of his being overcome with passion. She believed that he was essentially a good person, a person of some social standing given his prestigious university background.
     
  11. However, when they re-entered the shop, he called the security company to let them know that he was still inside then he turned to Endô-san and yelled at her to get upstairs. She was so frightened by the tone of his voice and demeanour (she had never witnessed such fury) that she complied and despite her pleas to stop and attempts to resist, he raped her on the store-room floor. He spoke to her as if she was a prostitute and knocked her head when no rely was forthcoming. When he had finished she fled to the bathroom and locked the door. The following day she rang the defendant and demanded an explanation and apology.


    'Perceptual fault lines' and competing narratives
     
  12. It is possible that these divergent accounts of what actually happened were the result of existing gaps in perception, what legal scholar Kim Lane Scheppele refers to as 'perceptual fault lines', rather than an indication that one party was telling the truth and the other lying. Scheppele notes that social psychological research indicates significant gendered differences in perceptions of sexual intentions with men more likely to sexualise their descriptions of women and social situations. For example, the same 'friendly' behaviour is more likely to be interpreted as mere politeness by women but seductive and provocative by men.[9] This research also suggests that men often make mistakes about what the woman thinks is going on. A woman may experience rape by a man who, in contrast, thought he was playing the role of seducer and used what he thought was the normal or appropriate degree of aggression needed to overcome what he perceived to be the 'no' that meant 'yes'. Similarly, a survey of over six thousand students in the United States of America conducted by Mary Koss found significant discrepancies between the way men and women interpret women's consent to sex and that women who have been targets of sexual assault perceive their resistance and the degree of force and coercion used to attain sexual intercourse as much more extreme than did offenders.[10] These findings suggest that the perceptual fault lines occurring between men and women in the area of sexuality are 'deep, enduring, and of enormous consequence in daily life'.[11]
     
  13. Differing perceptions between differently situated social groups tend to emerge and become reinforced during periods of significant social change and particularly when a lawsuit is at issue which solidifies the competition between different perceptions of events. Thinking about gender relations and gender identity in Japan, particularly in relation to issues involving sexual violence, has shifted quite dramatically since the mid 1980s. This has been highlighted by legal battles regarding sexual harassment, increased policing of sexual assaults on trains [chikan], improved policing practices relating to rape complaints, the introduction of legislation regarding stalking in 1999 and domestic violence in 2001, and substantially increased media attention on these issues. The significance of such shifts is noted by Ikeda Richiko who observes that as women's experiences and perceptions of 'unwanted sexual attention' begin to attain social recognition the same behaviour that once cast a man as an 'appropriately masculine person' may be perceived in such a way that he is cast as 'perpetrator' or 'criminal'.[12]
     
  14. It is possible that the story of a romance put forward by the defendant in Endô's case was accepted as legal truth because it conformed most closely to the implicit standards for descriptions of reality, corresponding to culturally specific normative conventions and understandings of the world and the way it operates. A story is recognised as persuasive when it adheres to and makes sense in accordance with the particular experiences and ideas which contribute to our perceptual maps of 'the way things are'.[13] In the legal context, 'perceptual fault lines' are frequently greatest between insiders' stories which accord with the dominant ideology and those told by marginalised outsiders. Although a particular story may be an accurate interpretation of events comprising a legal case it may be rejected or excluded by the law because the story is based on experiences that differ from those who sit in judgement.
     
  15. The perceptual fault line therefore explains the existence of two conflicting accounts of the way rape is regarded by law and legal personnel.[14] On one hand, rape is regarded as a heinous offence and thus carries stiff penalties. Police, prosecutors and judges are likely to comment on the gravity of the offence or the viciousness of the attack and victims who come before them may be treated with sympathy. On the other hand, there is evidence to suggest that the majority of sexual assault allegations will be trivialised and dismissed thus avoiding further legal proceedings. An abundance of feminist research conducted in numerous countries has revealed that in cases of sexual assault the majority of victim-survivors are unlikely to file a formal complaint, at least partially because they believe they will receive little sympathy from the courts or society in general.[15]
     
  16. This seeming paradox can be explained in terms of two types of rape stories: tsûjô [normal] rape and fushizen [not natural] rape.[16] The law has no trouble identifying and treating seriously rape scenarios in which a woman who could not be construed to have provoked an attack is physically beaten with a considerable degree of force, possibly threatened with a weapon by at least one stranger in a public place. In these cases, frequently described by Japanese judges as tsûjô rape situations, the law has no hesitation in condemning the act and the rapist. Tsûjô rape can be contrasted with cases described by Japanese judges as containing fushizen [not natural] elements—typically situations in which the complainant and the accused knew each other, where there is little evidence of physical force and where the woman's action could be construed as provocative. These are the cases most likely not to be reported or if reported they are most likely to be dismissed at some stage of the legal proceedings. In these cases it is more likely that perceptions of what happened are likely to diverge. This is not to suggest that the woman was not raped and that all perceptions are equally relevant or valid. Rather the point is that in such circumstances it is more likely that the woman's explanation of events will not be accepted at face value and the defendant's perceptions of what happened may differ to a considerable degree from that of the victim.
     
  17. Judges, prosecutors and police, that is, those in the legal position of choosing between divergent accounts of events, are thus faced with these perceptual fault lines and must decide and accord validity to one side. However, the scales of justice are not equally balanced between the plaintiff and the defendant. Feminist legal research suggests that the established legal standards on which this adjudication process is based serves to hide or disqualify stories which do not accord with the dominant, inherently masculinist, construction of rape, that is, tsûjô rape scenarios. The adjudication of divergent stories in Japanese courtrooms tend to focus on questions regarding the degree of force used to achieve penetration, defined largely in terms of the woman's level of resistance, and her blame-worthiness. This focus on the woman's character and behaviour, what is effectively the trial of the victim, determines that only 'tsûjô rapes' are granted credibility in the courts. Women's alternative perceptions and experiences of rape are consistently distrusted, dismissed or not heard at all.


    Interpreting rape law
     
  18. Rather than or in addition to the 'perceptual fault line' explanation, it is also possible that the romance narrative was mobilised by the defendant in Endô's case because it is such an effective defence strategy. In cases where the plaintiff and defendant were acquainted the romance narrative is used to contextualise lack of resistance and 'sub-standard' conduct of the woman. Taniguchi Masataka, Supreme Court Justice from 1980 to 1987, states that defence lawyers claim that when it comes to fighting cases in court, rape cases focusing on the question of consent are the easiest to win.[17] The reason he explains is that 'sex crimes may be said to be an extension of sex play [momoiro yugi]'. Therefore, conventional Japanese legal wisdom considers it necessary to consider any mistakes made by victims of sexual assaults because, as Taniguchi argues, 'victims themselves may easily respond to the "criminal's seductions" [hannin no sasoi] and create opportunities for crime, or even though victims could easily escape they do not seriously attempt to do so'.[18]
     
  19. This rationale played a critical role in Endô's case. Her case was not clear cut. Both narratives included inconsistencies and 'incredible' accounts which undoubtedly complicated adjudication. Nevertheless, the defendant agreed with the plaintiff that she protested, which could be reasonably understood as non-consent to sex. The defendant stated that he went ahead anyway 'because he was ready'—he was overcome with passion. She explained that a) her behaviour was moderated by the power relationship of employer and employee, that is, she felt the need to be 'nice' to him, and b) when they re-entered the store his sudden fury produced in her a fear which compelled her into a state of passivity and submission.
     
  20. The judges accepted that she was not 'positively willing to have sex' [susunde hikoku to seikô shiyô motsu kimochi niwa natte orazu] and that the defendant was a 'little too aggressive' [yaya seikyû na men ga atta koto ga ukagaeru], but at the same time none of the judges could call the act rape. This decision raises questions about whether Japanese law construes the fundamental element of rape as non-consent. The 'simple' answer is not exactly; or not in all cases. In tsûjô cases, those that conform to stereotypic rape scenarios, lack of consent may be relatively easy to demonstrate. However, in the vast majority of cases (although these may not be the majority of cases reaching trial) consent is not acknowledged as a reliable standard by which rape can be determined. For example, in Endô's case consent to intercourse was essentially implied by the fact that she did not flee when she had a chance while they were outside in the parking lot. The trial pivoted on the question of why she agreed to go back inside the store.
     
  21. Article 177 of the Japanese Penal Code defines rape in the following terms: 'a person who by violence or threat, obtains carnal knowledge of a female person … shall be guilty of rape and be punished with penal servitude for a limited period of not less than two years….' This definition is quite broad and therefore open to considerable interpretation and consequently, feminist legal scholars in Japan are generally more concerned with changing the way in which the law is interpreted than on changing the law per se. Rape law in Japan is generally understood to have three or four key elements: (1) penetration of the vagina by the penis, (2) without the consent of the victim, (3) achieved by the use of force or intimidation,[19] and (4) mens rea, where the perpetrator intended to have intercourse against the victim's will.[20]
     
  22. 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 these rely on the subjective opinion of the victim—and in such cases, appeal challenges would be a likely outcome.[21] The majority of scholars therefore concur that it is necessary to focus on the 'objective' standard of the behaviour involved, that is, the degree of force used to commit the crime. Consequently, much of the legal discussion concerning rape in Japan has focused on the degree of force or intimidation necessary to determine rape.
     
  23. However, even in this area there has not been a lot of debate. Taniguchi Masataka explains that this is probably due to the lack of cases coming before the courts which focus on determining the degree of force and intimidation as proof of rape. He notes that cases in which lack of consent is unclear rarely come before the courts because in the majority of cases where no physical injuries were incurred or the degree of violence and threat was light, victims tend not to file a complaint or drop their case before it comes to trial.[22] This course of action—or non-action—is often recommended by the prosecutor.[23]
     
  24. In contested or ambiguous cases the use of force is regarded as the most reliable gauge in determining rape and this is measured by the level of the woman's resistance. Moreover, the dominant legal opinion is that a high level of force needs to be demonstrated—such that the woman's resistance must be overcome [yokuatsu] or made significantly difficult [ichijirushiku konnan]. Taniguchi argues that this position is based on the premise that rape is the use of a woman's body as a tool to achieve a man's sexual gratification. Therefore the essential elements of rape include the violation of a woman's sexual freedom and also the intentions of the rapist. As the intention is to achieve sexual satisfaction and the means to do so is the use of violence and intimidation, non-consent is not enough to determine rape. It is necessary to prove the man's intention to rape with evidence of the means to commit the crime, that is, the use of force and intimidation.
     
  25. However, the judicial system sanctions the use of a degree of force in 'normal' consensual heterosexual sex, recognised in legal terms as yûkeiryoku.[24] As a result, in some cases the court finds it difficult to distinguish between the yûkeiryoku of consensual sex and rape and therefore the demonstration of the woman's strong resistance is necessary to establish that the level of force was above and beyond that accepted as part of 'normal' sexual relations.
     
  26. Moreover, according to conventional legal wisdom, women's very nature creates problems in determining rape. Taniguchi claims that although women are 'rational beings' [riseijin] this is complicated by the fact that women also have 'sexual impulses and instincts' [seiteki kanjô to honnô]. Consequently, in potential rape situations women do not always behave as rational actors by resisting earnestly to the end, rather, some women eventually submit to sexual intercourse. Taniguchi argues that although this cannot be called consensual sex, neither can it be called rape. Rather the offence falls more appropriately under the crime of compulsion [kyôseizai] which pertains to violations of free will or human freedom rather than sexual freedom.
     
  27. In legal terms, the main problem with this argument is that a 'rational' response to an assault is generally conceptualised as the behaviour expected of a man in a bar-room fight. That is, a reasonable man fears the threat of attack by a male stranger, particularly if he is outnumbered, and he reasonably fears the threat of a weapon which clearly disturbs the otherwise relatively equal balance of power between two men in a fight in terms of size and weight. The expected response to such threats is either 'fight or flight'.[25] However, feminist studies have found that women may respond differently, at least partially due to different socialisation processes.[26] While masculine fear typically triggers the 'fight or flight' response, women frequently respond by 'freezing', that is, involuntary immobility and silence,[27] or perhaps like Endô, whose fear compelled her into a state of compliance and passivity.
     
  28. Faced with little compelling evidence judges are more likely to draw on conventional or familiar narratives to determine what makes the most sense and a woman's strong physical resistance is an important marker of truth. This is particularly the case where there is a prior relationship between the woman and the defendant. To the extent that it might be possible to assume 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. The underlying reason for this is the dominant socio-legal understanding that both rape and sex are motivated by (male) sexual desire. However, feminist research and criminological studies of offenders convincingly argue that rape has less to do with serving sexual needs and more to do with the sexual expression of power and anger.[28] The limited construction of rape as a sexual act and a means to sexual gratification, assumes that rape is a spontaneous acting on or response to so-called natural sexual urges. Rape is therefore perceived as a sudden, explosive and violent occurrence; quiet calculation or more unimpassioned coercive control are not easily integrated into the dominant 'rape script'. It might have been argued that if the defendant in Endô's case had wanted to rape her, he would have done it earlier when they were struggling in the office. Numerous allegations of rape are dismissed because the situation appeared calm or too much time passed before the rape actually occurred.[29] These 'facts' facilitate the telling of a romance involving the yûkeiryoku of 'normal sex'.
     
  29. When rape is conceptualised as an attack motivated by sexual desire the woman's sexual desirability becomes central to the understanding of that motivation.[30] Woman functions as a mirror reflecting male desire and male subjectivity, but woman has no subject position in this arrangement; she is visible and relevant to the extent of the sexual value placed on her body. Sheila Duncan explains that 'innate urges' lose their explanatory power in situations where the victim is perceived to be undesirable: 'an urge for something constructed as sexually undesirable cannot be constructed as innate'.[31] To illustrate, in a case where a young man raped and killed a sixty-seven year old woman, and the degree of his alcoholism was in question, the Tokyo District Court judge stated that, 'if normal, a young person like the defendant, would not be interested in an old woman. He did not check to see if she was young or old.' Clarifying this point, the High Court judge on the case explained, 'it is possible the defendant had trouble visually focusing on the woman and so without verification of the woman's age he carried out sexual intercourse'.[32] The issue concerning sexual intercourse with an elderly (understood as sexually undesirable) woman was discussed as evidence of the seriousness of his alcoholism. The assumption was that a normal man would not desire/rape a sexless body therefore the defendant was not driven by normal innate sexual desire. The boundary between normal and abnormal sexuality was thus constructed in terms of the male heterosexual subject. On this basis both judgments determined that the defendant suffered from a pathological level of alcoholism and was therefore not criminally liable.
     
  30. The construction of rape as simply a means to gratify male sexual desire offers the defence counsel a number of useful strategies. A common defence is that any reasonable women should be aware that men are slaves to their sexual desires and should therefore take appropriate precautions. If they do not, then they are either at least partially to blame for neglecting to protect their honour and virtue, or, they wanted and therefore consented to sex. From an early age, Japanese girls are taught that it is their responsibility to protect themselves from these volatile urges over which men have little control and thus if a woman fails to do so then she may well be blameworthy to the extent that she was negligent.[33] The focus of the trial in Japan thus shifts from the defendant to the character and conduct of the woman.


    Narratives of romance and rape
     
  31. The 'ideal' rape victim in Japan as elsewhere is configured as a blameless, young, sexually desirable yet virginal woman violated by a stranger in a public place. However, although virginal status is an influential factor in determining some rape cases, in scenarios which could be imagined as a story of romance, a young virgin may still be constructed as seductress or liar and therefore blameworthy.[34] Right from the start of her legal battle, Endô was made aware by her initial lawyer that she had to counter this image of the ideal victim but that the likelihood of success was negligible. According to Endô, her lawyer advised that,

      no one would believe me because I have five children,[35] meaning that I have much experience in the sexual area. I was told that if I was a young girl people would believe me but with five children no-one would.[36]

  32. Nina Puren argues that the difficulty women have in claiming sexual innocence following a sexual assault is the result of a 'hegemonic phantasy … which effectively produces and controls the signification of "woman" in the heterosexual economy generally, and in the discursively proximate regimes of romance and rape in particular.'[37] She explains that the close correlation between narratives of romance and rape facilitate the apparent ease with which women's stories of rape can be turned into tales of seduction and romance. The fundamental link or 'hinge' between the discourses of rape and romance is the lexical signifier 'no'. A woman must continue to say 'no' to maintain the romance and to affirm her respectability or integrity, but at the same time, she must have a sexually desirable and desiring body.[38] If her body was not constructed as desiring, sexual intercourse would constitute rape, not romance. Thus the romantic narrative produces woman as wanting sex but necessarily saying 'no' and therefore she is also scripted as deceitful: her 'no' really meaning 'yes'.
     
  33. The romance narrative thus seriously problematises the situation for women alleging rape. The moment an allegation of rape is made the woman's claim to sexual innocence is lost and she signifies potential deceit. Her privilege to truthfulness and protection is therefore at least temporarily withheld. She is situated with all sexually experienced women who are suspected of inherent untruthfulness and therefore her account of rape must be subjected to particular scrutiny. Moreover, as Carol Smart notes, she must tell a story about a sexual encounter, providing graphic details of which body parts were where and when. The story has resonances with narratives designed to sexually titillate and give pleasure—those found in soft-porn, romance novels and tabloid newspaper stories.[39] However, if her story arouses she loses credibility: her story will sound less like rape than a 'standard sexual fantasy', plausible because it holds such wide social currency.[40] In such cases the court must distinguish between the 'no' of rape and the 'no' of romance (complicated by the construction of yûkeiryoku), sexual fantasy or pornography.
     
  34. As previously stated, the court does this by an interrogation of the type and degree of the woman's resistance which serves to reinforce and institutionalise the significance of the woman's resistance at the discursive centre of both romance and rape. This approach privileges ideas about romance as a process of seduction in which men are constructed as naturally aggressive initiators of sexual advances, the use of force legitimised as yûkeiryoku, thus making it so much easier for the defendant to construct a credible story about a 'love affair'. This may then be reinforced by images of avenging women scorned in love and deceitful women covering up their mistakes, as was the case in Endô's trials. Under such circumstances the woman's conduct and moral choices in life, before, during and after the rape may be used as a proxy for consent.[41] At various stages in the investigation of Endô's case she was questioned about how many sexual partners she had had, whether she was a virgin when she married, about her husband's sexual experiences and about why she returned to the shop instead of fleeing.
     
  35. In order to advance the story of a 'love affair', the defence had to demonstrate that Endô was not genuinely frightened of the defendant. The defence counsel's questions framed only two possible explanations for Endô's behaviour. First, if the defendant was a real rapist, a reasonable woman (one who is always on guard to protect her body from the uncontrollable sexual urges of men) would have been frightened and her natural instinct would be to flee. By not doing so Endô was negligent or foolish. Alternatively, Endô was a compliant actor in the seduction script and her fear stemmed not from the defendant, but rather from her immoral act of adultery. This defence strategy of offering a choice between two possible explanations for her behaviour, both serving to undermine Endô's credibility, constrained the space in which Endô could offer a viable counternarrative.
     
  36. If the romantic narrative renders sexually experienced women as untrustworthy, or inherently suspect, then how do women construct persuasive narratives of rape? In order to succeed in the difficult task of establishing sexual assault it is often necessary to claim total innocence or blamelessness and thus appropriate victim status.[42] This strategy requires that the description of 'what actually happened' is narrated in such a way that grey areas are white-washed. The story must in effect be sanitised. Endô attempted to defend her character and substantiate her story by constructing an image which resonates with culturally specific narratives of the 'pure love' personified in motherhood.


    The sanitisation process
     
  37. Given the socio-legal saliency of 'blame the victim' myths women are often compelled to tell a story which attempts to completely erase any possible reading of their actions which could be construed as blameworthy. Yet, the sanitising strategy often fails because the woman consequently loses credibility.[43] Sanitised accounts sometimes result in contradictions, ambiguities and proposals which may be interpreted as implausible or absurd. However, statements which appear contradictory, naïve or even highly improbable are not necessarily lies—although they could be. Therapist Janine Roberts notes that trauma victims' contradictory statements may reflect the process of trying to understand what happened in broad social terms, particularly when confronted with stock stories which do not relate a reality that seems familiar.[44] Reinterpretations of one's behaviour and events in retrospect may also reflect the process of coming to an understanding of oneself in relation to what occurred (a process very much emphasised in Japan although this is usually oriented towards identifying one's own responsibility or blameworthiness, that is, jinseki no nen).
     
  38. Endô framed her story in terms of a sanitised version of her own character and by contrasting rape with an idealised version of sexual relations within the context of 'pure' love. Virtually every aspect of the incident was placed within this framework, including the spatial context, to construct evidence of rape. Endô emphasised that the sex took place 'on the floor where people walk with their shoes'.[45] In the particular Japanese cultural context, this symbolises the 'impurity' or 'dirtiness' of the act, and it was suggested that his car would have been a more natural choice if they had indeed been a 'loving couple'. To counter the defence argument's appeal to the realm of male fantasy in which Endô was imagined as a fun-loving woman of leisure looking for romance, Endô was characterised as a conscientious, hard-working mother, too busy for love. The presumed legal preoccupation with 'facts' and 'reality' was utilised to dismiss the defence fantasy as illogical:

      with four children … and trying to get certification to become a hairdresser, a woman who needed as much money as possible … it is difficult to believe that she tearfully confessed she was in love with him … even if we temporarily put aside the question of whether she could even think about men or love. Furthermore it would be impossible to have someone else's child while living with her husband so we cannot believe she told the defendant she wanted to have his child.[46]

  39. Her character as a moral woman was reinforced and the critical question of why she re-entered the shop was explained by emphasising her Christian beliefs. It was argued that the Christian faith prohibited sex outside marriage and therefore Endô re-entered the shop because she thought the manager either wanted to propose marriage, apologise or say something to appease the situation. The underlying subtext is that a respectable particularly Christian woman does not understand or entertain the thought of male lust. Endô's morality was further reinforced by linking her with the essential purity and innocence of 'normal' women and mothers. Referring to the sexual expressions used by the defendant, Tsunoda Yukiko her legal representative in the Supreme Court appeal, argued that, 'a normal housewife with four children could not make up such expressions because they are not part of female vocabulary.'[47] Moreover, Tsunoda went to considerable lengths to demonstrate that the allegedly 'pornographic' [waisetsu] video Betty Blue which Endô lent the defendant (raised as evidence of the sexual nature of their romance) was rather a very popular French art film. Furthermore, it was argued that because there was no love relationship Endô (as a normal housewife and mother) would not consent to sex and therefore the act must be regarded as rape. Pure love provided the only reasonable context for sexual intercourse; sex under any other circumstances was constructed as necessarily constituting rape.
     
  40. Thus Endô's 'defence' of her character and behaviour rested largely on a sanitised version of gendered sexual relations in which female sexuality outside love and marriage was essentially denied and an ordinary woman's knowledge of male sexuality was at best naïve. This narrative locates female sexuality (if it exists at all) within the monogamous, heterosexual, legally sanctioned union of marriage reinforced by Christian beliefs. In terms of the broad feminist goals of redefining gender and sexuality this argument is limited by its reproduction of the dichotomy between ordinary/non-sexual/ victim and sexual/non-rapable/other. However, manoeuvres such as this must be assessed within the broader context of the cultural and legal constraints placed on articulating alternative narratives. The more immediate advantages offered by this strategy make sense in terms of the assumption that to disrupt the dominant discourse on rape it is necessary to draw on an equally familiar and therefore persuasive narrative. In this case the argument invokes the moral woman who is integrally linked to the powerful discourse on motherhood in Japan.
     
  41. The strategic strength of appealing to the context of love pertains to representations of the high social value attributed to motherhood as woman's fundamental social role and therefore women's primary source of morality, rather than to ideals of romantic love in the Western sense, although this idea has some (and increasing) social currency. The power of such images exists primarily in the domain of discourse or narrative convention rather than in 'reality' or lived experience. The image conveys a sense of women's value in terms of devotion and self-sacrifice rather than sexuality or female sexual pleasure. While the dominant Western image of love signals primarily (hetero)sexual relations, in Japan love is more likely to be idealised in the form of the mother and child (and therefore primarily non-sexual) relationship. The defendant's 'proof' of Endô's love, that is, her alleged claim to want to have his baby, is testimony to the strength of the link between love and motherhood.
     
  42. However, the emphasis on contrasting rape with 'pure love' meant that Tsunoda had to interpret the defence argument of a 'love affair' as a relationship incorporating notions of care and emotional commitment. Yet the defence argued that the defendant merely responded to Endô's love in a direct and understandably sexual manner. In other words, the subtext of the defence argument of romance was constructed around ideas of lust [sukebei-ness][48] rather than conceptions of a 'pure love'. Tsunoda's argument, or at least aspects of it, appears to have inadvertently consolidated the defence position that the driving force in their relationship was the defendant's 'natural' sexual desire, not love.
     
  43. At all stages of Endô's legal battle, the defendant's story was found to be convincing largely because the sanitised counternarratives of Endô's innocence, purity and naïveté failed to disrupt the dominant narrative of seduction and understandings of male sexuality as naturally aggressive and uncontrollable. One reason for the virtually hegemonic status of the seduction narrative is that there is very little social or legal understanding of women's experiences of fear and responses to an attack, outside those that conform to the 'fight or flight' model. More broadly, the legal framework could not accommodate the extent of Endô's experience; she felt there were no words to express and explain her story and so she struggled to find a voice within the existing 'language' of the courtroom. Referring to Western legal systems, but equally applicable to Japan, Nicola Lacey notes that,

      the language of embodied existence—of pain, shame, loss of self-esteem, the sense of violation and objectification—find no place within formal legal categories: nothing in those categories invites the victim to construct her testimonial narrative in the terms which empirical research suggest would best relate her experience…. Rape victims giving evidence in court are effectively silenced, caught between the equally inept discourses of the body as property, framed by legal doctrine but incapable of accommodating their experience, and the feminine identity as body, which pre-judges their experience by equating it with stereotyped and denigrating views of female sexuality.[49]

  44. The assessment of such legal constraints, in terms of the dominant narratives and categories informing rape law, frequently indicates to feminist lawyers the necessity of employing the largely unsatisfactory strategy of reproducing dominant essentialist representations of woman in order to achieve the immediate goal of conviction. However, given the limited range of alternatives, 'collusion' is one potential and pragmatic means of achieving success in the trial because the narrative which most conforms to 'common sense' is likely to be the most convincing. The danger, realised in Endô's cases, is that the story just 'doesn't add up' and the woman loses credibility.
     
  45. However, the legal strategies in Endô's trials were not entirely constrained to those that collude with dominant narratives. Endô's lawyers attempted to challenge and demonstrate the patriarchal nature of popular and legal understandings of rape.


    Reconfiguring heterosexuality, rapists and consent
     
  46. The challenge to the rape script in Endô's case was based on the fundamental feminist insight that dominant discourses construct rape within the parameters of the social institution of heterosexuality. The male experience of sex, oriented around penetration, is prioritised while women's experiences of the violation and degradation of rape are excluded. Tsunoda attempted in Endô's appeal to highlight this disjuncture between 'male logic' and women's experience around the issue of consent:

      The fact that she did not avoid him after being pressured by him sexually … was interpreted as forgiveness or submission. This amounts to convenient male logic…. In society, 'no' is interpreted as meaning 'yes' which denies women's sexual freedom. It is difficult to understand what the court expects of her, that is, what more must she do besides saying 'no'? If he does not stop after saying 'no', she could kick or punch him, but women are not educated in this way and so in reality few women can do this.[50]

  47. However, in attempting to link rape with dominant expressions of heterosexual relations Tsunoda infers that the defendant exhibited a normal or general 'male mentality', that is, not something peculiar to an image of a cruel sadistic rapist. Putting the question of the validity of the argument aside, it may well be that articulated here such arguments might have been counter-productive. That is, the challenge to the image of the pathological rapist was too subtle or too abstract to make an impact and therefore Tsunoda's argument may have been read as a further endorsement of the story constructed by the defence. Cases analysed in a broader study suggest that only in extreme 'tsûjô' rape scenarios are the accused constructed as pathological deviants.[51] More frequently men charged with allegations of rape are constructed as normal healthy young men who cross a fine line between the use of acceptable and unacceptable degrees of force and coercion and in many situations the mistake is regarded as understandable.
     
  48. Similarly, the defendant's admitted 'sense of regret and confused emotional state' after the rape was tendered by Endô's legal representatives as evidence of his sense of guilt, 'proving' the act was rape.[52] However, the rapist with a conscience is not part of the familiar narrative. Within the dominant discourse of rape if the use of coercion or force is acknowledged and causes guilt, the act cannot be construed as rape but that perpetrated by a man who succumbed albeit over-excitedly to his natural instincts, accommodated under the notion of yukeiryoku. Hence any sense of regret he may feel may be read as evidence of his fundamental humanity. In explaining the lack of conversation, the defendant stated that while he was 'doing it with the plaintiff' he was 'excited and not thinking'. Endô's lawyers interpreted his response as an indication that he had no consideration for the plaintiff's feelings and that he was captive to his sexual urges. However, this is the very point of the seduction narrative, that is, men are naturally ruled by their uncontrollable sexual desires. The argument therefore fails to resonate with images of rape and reinforces the 'ordinariness' or naturalness of the defendant's conduct.
     
  49. Of broader significance to achieving feminist goals, Tsunoda challenged the hegemonic strength of the seduction narrative through which sex obtained by force or coercion can, through the notion of yukeiryoku, be redefined as consent in the form of submission. The framework of love grounded in notions of motherhood—the primary space for the expression of adult womanhood, responsibility and social value—was used to propose a reconsideration of rape law, constructions of heterosexuality and ideas about consent. Tsunoda attempted to place the issue of consent at the centre of the law of rape and to construct that consent in terms of mutuality which assumes an empowered female role in heterosexual relations and a relationship of responsibility between women and men.[53] This redefinition of (hetero)sex thus incorporates a sense of relational autonomy and integrity for women, thereby reshaping power relations in terms of an alternative vision of sexuality and subjectivity.[54]
     
  50. The implication for rape law is that space is constructed for women to convey their consent (or not) to sex as mutual partners in an equal relationship while at the same time placing emphasis on men's responsibility to confirm consent. By arguing that sexual access would be denied by a good mother under any circumstances other than a relationship of mutual respect and love, the onus is placed on the defendant to provide evidence of care or affection and demonstrate that the woman actively consented to sex thus precluding the possibility of submission (which conveys no suggestion of free will) being interpreted as consent.[55] Negotiating this redefinition of rape within the discourse of motherhood and pure love, the primary context for women's social recognition, reinforces the notion of woman as citizen with legitimate social rights (such as freedom and bodily autonomy) which the state has an obligation to protect. The argument draws on a form of liberal feminist ethics in terms of emphasising the individual responsibility to respect and not harm others and Tsunoda used the analogy of rape as theft to reinforce this appeal to liberal democratic notions of rights and freedom. As such the legal argument gains legitimacy and is thereby strengthened and thus makes considerable strategic sense.
     
  51. However, Tsunoda's alternative construction of rape failed to register Endô's experience as rape because the dominant social and legal discourse of rape in Japan embraces the romance narrative and therefore accommodates the notion of 'acquiescent consent' or 'submission'. The difficulty in disrupting the seduction narrative by drawing an analogy with theft is partly that both arguments are premised on the same contradictory idea that female sexuality is regarded as both an inalienable object owned by an individual and something which can be taken from her or given away. Moreover, the idea of sexuality as a possession situates the harm of rape primarily as something that has been taken illegally. This idea limits the possibilities of framing rape in terms of alternative experiences of harm—such as the infliction of shame, humiliation and degradation, feelings of worthlessness and guilt, violation of trust, stigmatisation, objectification and exploitation'.[56] Sharon Marcus, in her text 'Fighting Bodies, Fighting Words,' succinctly states that, 'the horror of rape is not that it steals something away from us but that it makes us into things that can be taken'.[57]


    Conclusion
     
  52. Endô's case illustrates a few of the ways in which feminist lawyers and activists are contesting some of the dominant narratives produced in law, beyond the formulation of arguments designed to advance the interests of individual women in individual cases. Cases are used as opportunities to both mobilise public interest and to shift the thinking of judges because these currently mutually reinforce the dominance of the tsûjô 'rape script'. Feminist strategies around rape in Japan therefore are not, as in many other countries, focused primarily on instituting legal reform. While this may change in the future, at present, efforts are directed at promoting public debate in order to reconceptualise sexual violence as a harm rather than a non-threatening masculine fantasy. This is not merely a necessary first step. The wisdom lies in creating the space in which to construct alternative narratives of rape by examining women's experiences of victimisation. Legislation which does not significantly improve the court's receptiveness to hearing alternative accounts offers little benefit to women as has been demonstrated in many Anglo-American countries. The focus therefore on shifting social and judicial attitudes within and around trials makes considerable strategic strength.
     
  53. However, this is no easy task. The power of law to constrain, appropriate and dismiss women's stories is demonstrated by the sanitisation strategy which failed to provide the framework for narrativising a 'suspect' story within a conventional story-line. Another failed but potentially more promising strategy used in Endô's case was extending the logic of masculinist arguments to their limits to disclose internal contradictions and inconsistencies. This strategy is likely to have a greater impact over the long-term as a means to gradually undermine the authority of the rape script. Articulating women's counterstories in terms of rights rhetoric and through expert opinion are similarly part of the process of dislodging the dominance and legitimacy of the rape script. These strategies for working within the constraints of legal procedure thus demonstrate that lawyers are using cases as an opportunity to challenge dominant assumptions and thereby shift judicial thinking about gendered power relations and the nature of sexuality and sexual violence. It is clear that judgments are perceived to have a significant role beyond the case itself, as authoritative in terms of precedential value and as powerful social discourse.


    Endnotes

    [1] Ross Chambers, Story and Situation: Narrative Seduction and the Power of Fiction, Manchester: University of Manchester Press, 1984, pp. 205-26.

    [2] Gergen notes that convincing courtroom stories also conform to the rules of well formed narratives. These rules govern the amount and type of detail to be related, they require a clear 'end point' to the story which governs the direction of the narrative and implies its ending, and events should consistently relate to the endpoint in linear sequence, preferably making causal linkages between events. Kenneth J. Gergen, 'Mind, Text, and Society: Self-memory in social context', in The Remembering Self: Construction and Accuracy in the Self-narrative, ed. Ulric Neisser and Robyn Fivush, Cambridge: Cambridge University Press, pp. 78-104, pp. 91-94. Gergen's observation is based on Bennett and Feldman's study of jurors' interpretations of evidence. W. Lance Bennett and Martha S. Feldman, Reconstructing Reality in the Courtroom, New Brunswick: Rutgers University Press, 1981. I thank an anonymous referee for drawing my attention to Gergen's work.

    [3] Much of the legal narrative work has been published as journal articles and some journals have devoted entire issues to debates developed around the concept of legal storytelling. A special edition of Michigan Law Review for example included 11 articles spanning over 400 pages. Symposium, 'Legal Storytelling', Michigan Law Review 87, 8 (1989). Influential articles have been compiled into books, see David Ray Papke (ed.), Narrative and the Legal Discourse: A Reader in Storytelling and the Law, Liverpool: Deborah Charles Publications, 1991; Patrick Nerhot (ed.), Law, Interpretation and Reality: Essays in Epistemology, Hermeneutics and Jurisprudence, Dordrecht: Kluwer Academic Publishers, 1990. For a comprehensive categorisation of representative works in the broad fields of law and narrative see Shoshana Felman, 'Forms of Judicial Blindness: Traumatic Narratives and Legal Repetitions,' in History, Memory, and the Law, ed. Austin Sarat and Thomas R. Kearns, Ann Arbor: University of Michigan Press, 1999, pp. 25-93, pp. 26-28. See also Costas Douzinas and Ronnie Warrington with Shaun McVeigh, Postmodern Jurispridence: The Law of Text in the Texts of Law, London: Routledge, 1991.

    [4] Bernard S. Jackson, 'Narrative Models in Legal Proof', in Narrative and the Legal Discourse: A Reader in Storytelling and the Law, ed. David Ray Papke, Liverpool: Deborah Charles Publications, 1991, pp. 158-78, p. 162.

    [5] Patricia Ewick and Susan Silbey, 'Subversive Stories and Hegemonic Tales: Toward a Sociology of Narrative', in Law and Society 29, 2 (1995): 197-226, p. 211.

    [6] Richard Delgado, 'Storytelling for Oppositionists and Others: A Plea for Narrative', in Michigan Law Review 87, 8 (1989): 2411-441, p. 2412.

    [7] A jury system was used from 1928 to1943 and its reinstitution in a revised form was recommended by the Judicial Reform Council in June 2001. The Justice System Reform Council, 'Recommendations of the Justice System Reform Council - For a Justice System to Support Japan in the 21st Century', 12 June 2001, http://www.kantei.go.jp/foreign/judiciary/2001/0612report.html, accessed 1 Oct. 2001.

    [8] Therefore, a panel of judges must preside over criminal cases of rape, a crime which carries a punishment of imprisonment for not less than two years. A panel of judges also presides over appeal cases. Rape law in Japan has remained virtually unchanged since the 1907 enactment of the current Japanese Criminal Code, which is primarily based on German Law. Japanese law is not however, solely influenced by Continental law. The Code of Criminal Procedure, enacted in 1948, was modelled on Anglo-American law, although its interpretation often reflects earlier French and German influences. For a general overview of the legal system in Japan see Joseph W.S. Davis, Dispute Resolution in Japan, Den Haag: Kluwer Law International, 1996; Didrick Castberg, Japanese Criminal Justice, New York: Praeger, 1990; Minoru Shikita and Shinichi Tsuchiya, Crime and Criminal Policy in Japan from 1926 to 1988: Analysis and Evaluation of the Showa Era, Tokyo: Japan Criminal Policy Society, 1990; Hideo Tanaka (ed.), The Japanese Legal System: Introductory Cases and Materials, Tokyo: University of Tokyo Press, 1976; Hiroshi Oda, Japanese Law, London: Butterworths, 1992.

    [9] Kim Lane Scheppele, 'The Re-vision of Rape Law,' The University of Chicago Law Review 54, 3, (1987): 1095-116, p. 1109.

    [10] Mary P. Koss, 'Hidden Rape: Sexual Aggression and Victimization in a National Sample of Students in Higher Education,' in Confronting Rape and Sexual Assault, ed. Mary E. Odem and Jody Clay-Warner, Wilmington: Scholarly Resources, 1998, pp. 51-69, p. 66.

    [11] Scheppele, 'The Re-vision of Rape Law,' pp. 1110-11.

    [12] Richiko Ikeda, 'Changing Interpretations of Gender Relations in Japan,' unpublished Ph.D. thesis, Oklahoma University, Ann Arbour UMI, 1995, p. 5.

    [13] Kim Lane Scheppele, 'Foreword: Telling Stories', Michigan Law Review 87, 8 (1989): 2073-98; Kim Lane Scheppele, 'The Re-vision of Rape Law', pp.1095-116.

    [14] Catherine Burns, 'Judicial Narratives on Trial: Constructions of Sex, Gender and Sexuality in the Japanese Courtroom', unpublished Ph.D. thesis, Griffith University, 2000. For a comprehensive study of these two conflicting ways of dealing with rape in the US see Susan Estrich, Real Rape: How the Legal System Victimizes Women Who Say No, Cambridge: Harvard University Press, 1987.

    [15] Susan Edwards provides a concise summary of major studies and issues in this area across a range of countries. See Susan Edwards, Sex and Gender in the Legal Process, London: Blackstone, 1996, pp. 331-32.

    [16] These terms roughly correspond to Estrich's concepts of 'real' and 'simple' rape. Susan Estrich, Real Rape.

    [17] This is significant given that the conviction rate is consistently over 99.6%.

    [18] Taniguchi Masataka, 'Gôkanzai ni okeru bôkô, kyôhaku no teido' (The Degree of force and coercion in the crime of rape), Hanrei Hyôron 27, (in Hanrei Jihô 220), (11 April 1970): 5-9, p. 6.

    [19] George M. Koshi, The Japanese Legal Advisor: Crimes and Punishments, Tokyo: Charles E. Tuttle, 1970, pp. 140-41. Naftulin provides a similar definition and notes that the law precludes the recognition of both 'homosexual rape' and 'marital rape'. Homosexuality between consenting adults is not a criminal offence, but without consent it is punishable as kyôsei waisetsu [indecent liberty] under Art. 176. Similarly acts such as penetration by an object and/or anal and oral penetration (which might be experienced as rape) are punishable as kyôsei waisetsu. Naftulin's comment regarding marital rape, however, is rather misleading. The wording of Art. 177 does not exclude cases of marital rape although this is usually the case in terms of judicial interpretation. Lois J. Naftulin, 'Women's Status Under Japanese Law', in Feminist International 2, (1980): 13-16, p. 15.

    [20] 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 I analysed in a larger study state that it is a necessary element of the crime of rape. See Burns, 'Judicial Narratives on Trial'; Taniguchi, 'Gôkanzai ni okeru bôkô, kyôhaku no teido'.

    [21] Tsunoda Yukiko, Sei no hôritsugaku (Legal Studies of Sexuality), Tokyo: Yûhikaku Sensho, 1991, p. 27. This point is also explicitly stated by the judge in Case of rape resulting in bodily injury, Hiroshima High Court 1978 SH53 (u) No. 59, Judgment 20 November 1978, Hanrei Jihô 922, (1 June 1979): 111.

    [22] Taniguchi, 'Gôkanzai ni okeru bôkô, kyôhaku no teido', p. 7.

    [23] Tsunoda, Sei no hôritsugaku, p. 32. For a discussion of the considerable discretionary decision-making powers of Japanese prosecutors, see Daniel H. Foote, 'Prosecutorial Discretion in Japan: A Response', in Pacific Basin Law Journal 5 (1986): 96-106; Marcia E. Goodman, 'The Exercise and Control of Prosecutorial Discretion in Japan', Pacific Basin Law Journal 5, 16 (1986): 16-95.

    [24] For example, a High Court judge admitted that the sexual intercourse took place against the woman's will, that she was screaming and pleading with the defendant to stop and to take her home. Nevertheless the degree of force could not be distinguished from that used in 'normal' sex (tsûjô seikô ): 'regarding the extent of force used in consensual sex men generally pull women who are sitting up down to end with sexual intercourse, put their hands on women's shoulders and pull them near, push them down, tend to pull off their clothes then position themselves on top of the woman and so forth.' The judge acquitted the defendant arguing that there was insufficient evidence of enough force and threats 'to make resistance significantly difficult.' Case of rape resulting in bodily injury, Hiroshima High Court 1978 SH53 (u) No. 59, Judgment 20 November 1978, Hanrei Jihô 922, (1 June 1979): 113. In a sexual harassment case involving an allegation of rape the defence lawyer argued that 'even if we assume there was some violence involved, even consensual sexual relationships normally involve some refusals (kyohiteki gendo) and violence (bôryoku teki kôi), and therefore we cannot say that the sexual relationship was against her will only on those grounds.' Compensation claim, Kyoto District Court, 1994 H6 (wa) No. 2996, Judgment 27 March 1997, (Judgment transcript), p. 74.

    [25] Estrich, Real Rape, p. 60.

    [26] See Steven Box, Power, Crime and Mystification, London: Routledge, 1983, pp. 148-50; Estrich Real Rape, p. 60.

    [27] These are learned responses to fear and are part of what Sharon Marcus calls the 'gendered grammar of violence' which precedes and structures rape. She explains that,

      the grammar of violence dictates that feminine fear concentrates the self on the anticipation of pain, the inefficacy of action, and the conviction that the self will be destroyed. Feminine fear precipitates all violence and agency outside of its subject; it thus disables its subject from risking possible pain or death in order to defend herself, since that risk can seem viable only if the subject perceives herself as possessing some violent capacity on which she can draw to try to survive pain or elude injury. Feminine fear also seems to entail a complete identification of a vulnerable, sexualized body with the self'.

    Sharon Marcus, 'Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention', in Feminists Theorize the Political, ed. Judith Butler & Joan W. Scott, New York: Routledge, 1992, pp. 385-403, p. 394.

    [28] Sue Lees, 'Judicial Rape', in Women's Studies International Forum 16, 1, (1993): 11-36; Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law, Cambridge: Harvard University Press, 1987, pp. 85-92; A. Nicholas Groth and H. Jean Birnbaum, 'The Rapist: Motivations for Sexual Violence', in The Rape Crisis Intervention Handbook: A Guide for Victim Care, ed. Sharon L. McCombie, New York: Plenum Press, 1980, 17-26; Lloyd Vogelman, The Sexual Face of Violence: Rapists on Rape, Johannesburg: Ravan Press, 1990.

    [29] See for example, Case of rape, Hiroshima District Court 1968 SH43 (wa) No. 700, Judgment 26 March 1969, Hanrei Taimuzu 235, (August 1969): 286; Case of rape resulting in bodily injury, Hiroshima High Court 1978 SH53 (u) No. 59, Judgment 20 November 1978, Hanrei Jihô 922, (1 June 1979): 113; Compensation claim [sexual harassment], Kyoto District Court, 1994 H6 (wa) No. 2996, Judgment 27 March 1997, (Judgment transcript), p. 74.

    [30] For a discussion of this issue in US trials see Lisa A. Binder, '"With more than Admiration he Admired": Images of beauty and defilement in judicial narratives of rape,' in Harvard Women's Law Journal 18, (Spring 1995): 265-99.

    [31] Sheila Duncan, 'Law's Sexual Discipline: Visibility, Violence, and Consent,' in Journal of Law and Society 22, 3, (1995): 326-352, p. 333.

    [32] Case of rape resulting in death, murder, Tokyo High Court, 1981 SH56 (u) No. 625, Judgment 25 January 1984, Hanrei Jihô 1125, (21 October 1984): 166.

    [33] A Ministry of Education Handbook still on sale includes a chapter on guiding students in order to prevent them experiencing sexual harm. The chapter lists a vast array of behaviours and situations to be avoided and explains that if, however, a girl is violated she should be guided to consider her role in the incident, (e.g. wearing inappropriate clothing and improper behaviour) and how she could prevent the same thing from happening again. The authors state that girls need to be informed about the strength of male sexual desire: that sometimes men's sexual urges become so violent/wild [hageshii] and uncontrollable that they cannot help themselves and therefore given the opportunity any man could become an attacker. See Mombusho, Shishunki ni okeru seito shidô jô no shomondai: Kô tô gakkô hen, Tokyo, 1974.

    [34] For examples see Burns, 'Judicial Narratives on Trial.'

    [35] Endô-san's fifth child was born after the alleged rape.

    [36] Interview with Endô, 10 December 1996.

    [37] Nina Puren, 'Hymeneal Acts: Interrogating the Hegemony of Rape and Romance,' in The Australian Feminist Law Journal 5, (1995): 15-26, p. 15.

    [38] Puren, 'Hymeneal Acts,' p. 21.

    [39] Carol Smart, Feminism and the Power of Law, London: Routledge, 1989, pp. 39-40.

    [40] Carol Smart, 'Law's Truth/ women's experience,' in Dissenting Opinions: Feminist Explorations in La and Society, ed. Regina Graycar, St Leonards, New South Wales: Allen and Unwin, pp. 1-20, p. 17.

    [41] Kristin Bumiller, 'Fallen Angels: The Representation of Violence Against Women in Legal Culture,' in International Journal of the Sociology of Law 18, 2, (1990): 125-42, p. 132.

    [42] While the perceived need to tell a story that cannot be construed as blameworthy is not restricted to rape victims, this need is particularly acute for many women who have experienced rape because in many cases it is the victim who is effectively placed on trial. In both legal and social discourses of rape in Japan (and elsewhere) the woman's character, sexual history, dress and conduct before, during and after the alleged rape are regarded as significant factors to be taken into consideration in determining guilt and innocence.

    [43] For an analysis of problems regarding women's credibility in Australian rape cases see Rae Kaspiew, 'Rape Lore: Legal Narrative and Sexual Violence,' in Melbourne University Law Review 20, (1995): 350-82, p. 361.

    [44] Janine Roberts, Tales and Transformations: Stories in Families and Family Therapy, W.W. Norton, New York, 1994. See also Leslie G. Espinoza, 'Legal Narratives, Therapeutic Narratives: The Invisibility and Omnipresence of Race and Gender,' in Michigan Law Review 95, 4, (1997): 901-37, pp. 913-17.

    [45] Interview with Endô, 10 December 1996.

    [46] Compensation claim, Maebashi District Court, Takasaki Branch, 1995 H5 (wa) No.38, Judgment 23 April 1995.

    [47] Compensation claim, Supreme Court, 12 August 1996, No. 492. While it is true the particular expressions such as yarinige [root and run-'root' is an Australian colloquial expression meaning 'sexual intercourse'] are generally not used by women, it is more problematic to argue that women have no knowledge of them.

    [48] Anne Allison provides an important analysis of the meanings of sukebei and its role in the masculine social world of play. Anne Allison, Nightwork: Sexuality, Pleasure, and Corporate Masculinity in a Tokyo Hostess Club, Chicago: University of Chicago Press, 1994.

    [49] Nicola Lacey, unspeakable subjects: feminist essays in legal and social theory, Oxford: Hart Publishing, 1998, p. 116.

    [50]Compensation Claim, Supreme Court, H8, No.492, Judgment 12 August 1996, p. 25.

    [51] Burns, 'Judicial Narratives on Trial.'

    [52] Compensation claim, Maebashi District Court, Takasaki Branch, 1995 H5 (wa) No.338, Judgment 23 April 1995.

    [53] Ehara Yumiko similarly emphasises the importance of displacing the existing double standard of sexuality with the idea of mutuality. Ehara Yumiko, '"Sekushuaru harasumento no mondaika" wa nani o shite iru koto ni naru no ka?"(Highlighting Sexual Harassment as a Social Problem), in Sekushuaritii (Sexuality), ed. Inoue Teruko, Ueno Chizuko and Ehara Yumiko, Tokyo: Iwanami Shoten, 1995, pp. 111-16.

    [54] Nicola Lacey argues that there is significant potential in rethinking rape from the perspective of autonomy, not in the atomistic liberal sense but in terms of integrity which might be usefully conceptualised so as to incorporate both the body and relational interdependence, that is our dependence on others in daily life. Lacey, unspeakable subjects, pp. 118-24.

    [55] For a discussion of the law's difficulty in dealing with the notion of submission see Smart, Feminism and the Power of Law, pp. 33-49; Carol Smart, Law, Crime and Sexuality: Essays in Feminism, London: Sage, 1995, p. 113. For an overview of feminist theories concerning consent and rape reform strategies see Robin West, 'A Comment on Consent, Sex, and Rape,' Legal Theory 2, (1996): 233-251.

    [56] Lacey argues that the law cannot accommodate the range of women's experiences of harm. Lacey, unspeakable subjects, p. 106.

    [57]Marcus, 'Fighting Bodies, Fighting Words,' p. 399.


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This paper was originally published in Intersections: Gender, History and Culture in the Asian Context, with the assistance of Murdoch University.

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