Court scraps acquittal of man; sentences him to 10 years for raping daughter

For those that are criticizing the first judge: know that he was following the letter of the law and showing judicial restraint. The second judge was showing judicial activism. All well and good, but just remember, that judicial activism has been responsible for judge-made laws in common law countries - not just abortion rights, but the rights of corporations to spend unlimited funds for a political candidate (buying the elections). While civil law countries have less opportunity to engage in precedent overriding laws, wouldn't it be best to change the law and specify so judges can act more uniformly?

Change the law to what? Make it too strict and any woman can have sex with a man and claim afterwards they were raped. To me this sounds like either the original judge was an idiot, or the daughter had a terrible lawyer, or some combination of the two.

Who would ever want to have sex with your own parents?

@ReynardFoxToday 12:06 am JST

Don't fight me, fight the logic. That's why we need to include the basics of law in compulsory education. Seems more useful to me than calculus or ancient history which 90% of the population will never have a need for after school.

On the issue at hand, you've intermixed two issues. The way the law should be written and the acquittal. As far as the acquittal is concerned, in any case Rape is Sex w/o Consent is NOT the current formulation in Japan and that's what everyone has to work with.

On the acquittal. First, you shouldn't put too much weight on "his own daughter". Do you remember Aizawa v. Japan? It's great that patricide was eliminated, but what goes for the goose goes for the gander. They are the exact same factors - the instinctive moral sense that act committed against people of certain status, in that case parents, should be weighted especially heavily versus the Article 14 constitutional mandate (+moral argument) for equality.

Second, the original judge made the more principled stance, because as you said, it goes against the moral instinct. Law is not the same as morality, "instinctive" morality more so. Unless he had a really weird mental constitution, he must have worked it out in his brain using the logical principles a judge is supposed to use - the strict concentration on the instant case and a principled application of the law as it is given to him rather than stretching it. When the shoe (in this case a legal rather than factual one) didn't fit, he acquitted - exactly as a judge is supposed to do. BTW, he defied the prosecutors, which cannot be bad for his bravery assessment.

The appeal judge started from his conclusion and fudged a rationalization together. While you might like this judgment more, judges that rule from their whims are more dangerous.

Don't like it? Call for a legislative change. But don't be happy when a judge just "stretches" the statute. The principled application of law encourages in the long run better legislation.

As for the formulation of the revision, see my 12:25 am JST.

Extremely disturbing that the lower court acquitted him, what this court is implying is that it is okay to RAPE your own daughter as long as she does not resist!? SICK and despicable ruling.

@rainydayToday 08:18 pm JST

Let me guess. Common law? Believe me I do have some familarity with elements.

If sex without "an exception" is a crime, then basically sex is a crime. 

For example, common law language often also use "without excuse", like "Trepassing without reasonable excuse commits an offence". Then the fact that trepassing is basically a crime is unambiguous, yes? In essence, we just changed the name of the crime and the name of the exception. In a grammatical sense it is exactly the same.

And while I know common law tends to be weak in overarching theories in favor of following case law (they call it a casuistic approach), defining a "lack of an element" as an element is oxymoronic in a substantive law sense and it is more logical to just see it as (in common law language, which I assume is where you came from) a defense. In civil law, it's seen as a Justification (and remember we are dealing with Japan, a civil law country).

In common law, practice suggests the difference between sticking these things into the same sentence as the offence and sticking it in a separate section marked "Defences" is to classify it as a "negative averment" or "negativing element" or other similar language. The burden of proof however, will still lie with the defendant. With perhaps a reduced requirement compared to when it is in a completely different section, but the burden still inverts! Not very different from a defence, is it?

For a life example in action, consider:

https://www.legco.gov.hk/yr04-05/english/bc/bc63/papers/bc631122cb2-419-2e.pdf (just a random grab from a common law jurisdiction)

Just to seal the deal, let me quote from advocates of this kind of language:

Requires the existence of “unequivocal and voluntary agreement” and requiring proof by the accused of steps taken to ascertain whether the complainant/survivor was consenting;

Cited from Handbook for legislation on violence against Woman Page 26 (35/68 in the PDF)

Hopefully, that the desire that the burden of proof be reversed is undeniable, and as a practical matter if this is to mean much it must operate in such a way, because in any scenario that would require this formulation, the defendant if he had a brain would claim he had consent or at least reasonably believed he did. If he's not required to present some proof this is not worth the ink of writing it on.

rainydayToday 10:44 pm JST

It is impossible to draft legislation that is completely free of ambiguity and that means the courts will always have to interpret the meaning of it in relation to cases brought before them.

If you agree that there is "ambiguity", it is already a great reason to rule in favor of the defendant. Don't you believe in legality requirement?

@Kazuaki Shimazaki

Do your arms hurt from reaching that far to try and justify the acquittal of a rapist? “Requiring consent is criminalizing sex”. What planet do you live on? The man not only reaped someone, the sicko raped his own daughter and here you are contorting yourself into knots - performing some fifth-dimensional mental acrobatics - to try and justify to us (or perhaps yourself?) why you believe what he did was definitely not rape.

For those that are criticizing the first judge: know that he was following the letter of the law and showing judicial restraint. The second judge was showing judicial activism. All well and good, but just remember, that judicial activism has been responsible for judge-made laws in common law countries - not just abortion rights, but the rights of corporations to spend unlimited funds for a political candidate (buying the elections).While civil law countries have less opportunity to engage in precedent overriding laws, wouldn't it be best to change the law and specify so judges can act more uniformly?

You can call it what you want, but the judges at both levels were equally bound to follow the letter of the law and did so. It is impossible to draft legislation that is completely free of ambiguity and that means the courts will always have to interpret the meaning of it in relation to cases brought before them. The decision of the District Court judge was no less activist in that sense than the High Court was, he just favored a different interpretation than that favored by the High Court. To me the High Court interpretation makes way more sense.

For those that are criticizing the first judge: know that he was following the letter of the law and showing judicial restraint. The second judge was showing judicial activism. All well and good, but just remember, that judicial activism has been responsible for judge-made laws in common law countries - not just abortion rights, but the rights of corporations to spend unlimited funds for a political candidate (buying the elections). While civil law countries have less opportunity to engage in precedent overriding laws, wouldn't it be best to change the law and specify so judges can act more uniformly?

He wouldn't last a month in a US prison before someone gave him the sentence he deserved.

A great first step for Japan in this area. Now, if they could just change rape-related laws and related criminal procedures to bring them in line with the rest of the developed world, that would be lovely.

Why was he aquitted before?

The problem lies with Japan's Criminal Code and its idiotic application by the trial judge. It doesn't define rape as committing a sexual act with someone without that person's consent like it does in most countries. Instead it requires either the sexual act to have been perpetrated through "assault or intimidation" (basically requiring violence) or where the perpetrator is taking advantage of the victim's inability to resist (usually used when the victim is unconscious).

So to convict the prosecution either has to prove that violence was used, or that the victim was incapable of resisting. In this case, they didn't have evidence that the father used violence in committing the actual rape itself, and the trial court held that she was physically capable of resisting, but didn't, so it acquitted.

This was idiotic because it ignored the totality of the situation - the guy had been abusing his daughter for years and the sheer depravity of the situation made her psychologically incapable of resisting, even though she may have physically been able to try to fight him off. The idiot judge just ignored that and acquitted basically because she theoretically could have physically resisted.

The High Court has just slapped that stupidity down, thank god.

Hang em High once he’s in the big house.

Why was he aquitted before?

When I saw the words "scraps acquittal" I was ready to be angry at a justice system that seems bent on destroying innocent people. I'm glad I read the story in full and saw that this reversal was probably a good thing.

Since when has incest been a crime in Japan? Sexual assault is one thing but incest is quite another. Is that now in the law too? Please I hope it is so that a lot more can be locked up with the deadbeat.

adding that the repeated sexual abuses sapped the daughter's will to fight her father, making her psychologically unable to resist him.

This is the ratio of the judgment (the decisive point for the reversal). AFAIK, the basic problem with the case is that on the case being decided Perpetrator either did not apply or applied insufficient force to have qualified. If it had been a one-off, there will be no question of his acquittal regardless of what one may feel morally. If a different case (from the past) was tried, he may be guilty, but he wasn't tried for that.

People may like this ruling more, but in terms of legal professionalism it is a less professional and principled ruling. In essence, the judge allowed acts outside the tried crime to leak into the present case.

I must also point out that there were no plausible political factors that pushed the original judge to acquittal. This guy doesn't have a lot of power or connections - a random nobody. No judge gets hurt for humoring the prosecutor. And at least the masses, untrained in law, won't mind a guilty verdict there. So the previous one was, whether you liked it or not, a principled ruling in accordance with law and precedent, and this one is more of a pander-to-the-masses ruling.

Legal and criminal issues apart, it is completely incomprehensible to me how a 47 own guy can have sex with his 16 year own daughter. Habitually, and probably started earlier than that (several years it was mentioned). And regardless of the degree of consensus, how can a human be so degraded?? Does the decision include castration?

Only ten years! Better than the previous verdict but still short, however, it is progress. The guy a despicable POS and I hope he rots in prison. Let's hope the young woman can get a sense of closure from this and have as normal a life as possible.

That's good news.  I Just saw this case now... and I am in complete disbelief that a parent raping his own offspring can actually be acquitted (before the overturn) .  There might not be a change in the JP law, but at least this case can now be used as precedent.

only 10 years?

I want to give you all the likes, Maria.

 she had sex with her father against her will 

I really with people who report these things would consider their language. He raped her. He had sex with her, not she with him.

The lower court ruling was an outrage, glad to see common decency prevailing for once.

OMG this feels do good to read! I am so happy right now. This needs to happen far more often here in Japan.

This is great news. Finally the justice system broke the line and did what was right. It is very interesting that an acquittal can be overturned in the Japanese justice system.

Kind of makes you wonder, what kind of draconian / ancient / cruel mindset were they having on rape to begin with?

And the logic that since an abused person may have not fought back sufficiently at a certain time, that it may not have been a crime...

Wow talk about aiding and abetting criminal behavior!

Who does that?!

Caligula's name jumps out.

Yuk!

Oh, boy! The grounds of his acquittal are just as (if not more) disgusting than what he did to his daughter. I wonder if the “I was drunk” line came into his original defense.

finally - Finally - FINALLY!!!!! The lower court ruling was so egregious, the judge then should now be sent to prison, along with the so-called (biological only) father.