Update:The Supreme Court dismissed Attorney Ito's appeal on May 11.
Recently, “unthinkable court rulings” have been causing women’s outrage, and here is one example.
Ms. Kazuko Ito (The Secretary General of the Human Rights Now), a lawyer who is fighting against the issues of forced adult/X-rated video (AV) appearance and sex crimes, has been accused of defamation; She lost in the first and second trials, and has appealed to the Supreme Court.
The Plaintiff alleges that her following comment on her tweet, regarding the arrest of the AV producer, is “Defamation.”
This is what I thought when I saw the arrested AV producer, desperately hiding his face: forced women to appear in the AV and violated their privacy by exposing their faces and bodies; humiliated the women and caused them significant shame and hurt; yet, hides behind and make enormous profits. I want those devilish people to expose their faces and take responsibility.
If this were “Defamation” and she were guilty, people would hesitate to speak up and be afraid of supporting women who faced sexual violence. This does not make sense at all, so I wrote my “Opinion Brief” to support. This is an official document submitted to the court, so I will publish it here.
March 30, 2021
Professor Emeritus at the University of Tokyo
The Chair of the certified NPO WAN, the Women’s Action Network
I, Chizuko Ueno, have been an assistant professor and then a professor at the Graduate School of Humanities and Social Sciences of the University of Tokyo from 1993 to 2011. As a sociologist, I have taught Women’s Studies and Gender Theory. After my retirement, I support the women’s social activities as the Chair of a certified NPO, the Women’s Action Network (WAN). I have studied many cases of sexism and sexual violence, published researches, and submitted Opinion Briefs to sexual harassment trials. I would like to call attention to, and request for consideration the factors which have been overlooked in the first and second trials, in the appeal of Tokyo High Court 2019 (Ne) No. 5084 (Original Court, Tokyo District Court 2018 (Wa) No. 27059).
2. Difficulty in Making Sexual Violence A Case
It is not new that victims of sexual violence have been silenced and convinced that nothing had happened. The hurdles for reporting sexual violence to the police are so high; therefore, those reported cases are often compared to the tip of the iceberg. In rare cases that victims reported to the police, male police officers repeatedly questioned the victims about the details of abusive experiences of sexual assault, which they did not even want to remember. Furthermore, those reported cases have been frequently treated as no case due to “insufficient evidence” because those incidents happened in a closed room.
Victims of sexual violence are confused; thus, they are unable to determine where to go to obtain support and what to do to preserve evidence. Instead, they tend to try to forget and hide their victimization, hoping this “awful memory” will disappear as soon as possible. Furthermore, victims of sexual assault rarely have information of and access to the few specialized medical institutions that are well-versed in dealing with sexual violence. The perpetrators generally deny their sexual assault and despise the victims saying that the victims are telling a lie. This perpetrator’s behaviour causes secondary victimization of the victims of sexual assault. As a result, the victims are isolated and people in society including their direct relatives treat them negatively. These are the reasons as to why very few sexual assault cases make a strong case to lead a guilty verdict in trial, even if a victim reports to the police or make accusation.
The above has finally become known from the accumulation of research on the damage caused by sexual violence and the testimony and memorandum of the victims themselves.
The most typical example is revealed in The Black Box (Bungeishunju-sha, 2017) written by Ms. Shiori Ito, a freelance journalist and a victim of sexual violence. The perpetrator, Noriyuki Yamaguchi, was the TBS Washington bureau chief at that time and Shiori was consulting him for her future employment. He sexually assaulted her and an arrest warrant for “quasi-rape crime” was issued. However, with some unknown reasons, he was not arrested and this sexual assault case was treated as no case. (The prosecution has not disclosed the reason; however, there seems to be political intervention over the perpetrator, Yamaguchi, who was close to Prime Minister Abe at that time).
Shiori later took Yamaguchi to the civil court in Tokyo and the court ordered him to compensate for damages. (She won in the Tokyo District Court in the first trial, and the Defendant’s appeal is pending in the Tokyo High Court.) Meanwhile, he has counter-accused her for defamation due to her false accusation. (The Tokyo District Court has dismissed his claim.)
Shiori is a journalist who is highly educated and knowledgeable, yet she did not know where to go immediately after victimized. She, just like other victims of sexual violence noted the above, wanted to wash away her horrifying memories as soon as possible, and therefore, she did not try to obtain and maintain evidence of sexual assault. Fortunately, She had some situational evidence and witnesses, and the facts were confirmed in the civil court. On the other hand, it is extremely difficult for a victim to prove the damage caused by sexual violence, as it occurred in a closed room in most cases. As mentioned above, the hurdles for proving sexual violence are so high and the number of applications to the court is estimated the tip of the iceberg.
3. Counter-accusation Harassment
Although it is difficult to make a case for sexual violence, it does not mean that there was no victimization, that is, the Defendant cannot prove that he did not commit sexual assault, either.
(Translator’s note) A victim has more chance to win in a civil court than a criminal court as in the Shiori’s case. The civil courts use “more-likely-than-not” approach of the balance of probability whereas the criminal courts use “beyond-reasonable-doubt” standard of proof.
Nonetheless, the alleged perpetrator often uses “counter-accusation harassment” that threatens the victim and her supporters for “Defamation”. This was already used in the Kyoto University’s Toru Yano case in 1993, which was a pioneering case of sexual harassment in the university. One of the victims, Ms. Otsuko Kono (not a real name), who was the secretary of the Yano laboratory, could not overlook the repeated sexual harassment towards multiple secretaries and filed a “Human-Rights-Relief petition” with the Kyoto Bar Association. The reason that she did not report it to the police was that the society as a whole has not yet understood the concept of “sexual harassment” in 1993. Furthermore, she was afraid that the police would assume that she consented to the professor’s act as she has been his secretary for a long time. She must have thought that filing a Human-Rights-Relief petition is a last thing she could do as she had no idea where to find help.
Ms. Kazuko Ono, the representative of the Kyoto University Women Instructor Association, who learned of the Yano case, has become extremely disturbed, because she was not able to provide a means for relief with the victims of sexual harassment on campus. (In 1993, the notion of “sexual harassment on campus” was not recognized yet and no university offered any support systems for victims of sexual harassment on campus.) She wrote a column to disclose this case, accusing Yano’s sexual harassment in the local newspaper, the Kyoto Shimbun. In return, Yano by using his wife’s name, took her to the court for “Defamation”, accusing that her comment was not true at all. The Court confirmed his sexual harassment – he was defeated in reverse. She described the details of this case in her book, Kyoto University Yano Case: What We Learned from the Campus Sexual Harassment Trial (Impact Publishing Association, 1998).
When I was assigned to the University of Tokyo in 1994, I learned that there was no organization equivalent to the Kyoto University Women Instructor Association at the University of Tokyo, and immediately organized the University of Tokyo Women Instructor Association (later the University of Tokyo Women Researcher Association). I then undertook a fact-finding survey on “the Gender Discrimination Experienced by Female Faculty Members at the University of Tokyo”. This research has become the foundation of my book, Chizuko Ueno edition, The Campus Gender Discrimination Circumstances – Stop The Akahara (Sanshodou, 1997). Please note that “Akahara” or “Academic harassment” is a coined word of Ueno and refers to the victimization of researcher specific harassment.
This conceptualization of harassment within the university has revealed the behaviours that has been hidden under an organizational structure (because it should not have occurred in the “Intelligence of the Highest School”) tends to induce sexual harassment. The response to sexual harassment at each university has progressed rapidly. However, it is not hard to imagine that there have been many cases that were silenced, or not talked about. Even today, not many cases are filed with the court.
4. The Darkness of the AV Industry
The “Defamation” trial filed against Ms. Kazuko Ito powerfully reminds us of the above-mentioned counter-accusation harassment. The damage caused by sexual violence, especially in the AV industry, is difficult to clarify as to what is consented and what is not. We also know that it depends on what happens in a studio during filming. There may be the situations that women have no chance to say no – the freedom of refusal can be deprived, and they may be bound by a contract or threatened by a penalty payment. Therefore, not only the sexual violence in the AV industry is less likely to be established, but also victims in the AV industry tend to abide sexual violence when compared to sexual violence in general.
Even if a woman who had enough of such sexual violence in the AV industry and wants to file her case with the court in her anguish, it is nearly impossible to make a case as the court likely dismiss her claim as “insufficient evidence”. However, the NPO, the Porno Damage and Sexual Violence Thinking Group (PAPS), which supports those victims, along with the lawyers, including Ms. Kazuko Ito, the Defendant of this case, understand sexual violence in AV industry. These supporters (“the Supporters” hereafter) have been furious at this legal ignorance and have demanded the government to tighten legal regulations in order not to create further victims of sexual violence in the AV industry.
In this trial, the wording of the tweet where the Plaintiff claims to be “Defamation” is “devilish people” The “devilish people” can be assumed as a group of people who are not ashamed of violating the women’s rights for the sake of their profit in the AV industry, based on the evidence collected by the Supporters by contacting the victims. The core dispute in this trial is whether “the arrested producer” (“the Producer” hereafter) is identified as the “devilish people”, and the following is my view: First, the Producer belongs to the AV industry is a known fact. Second, he has been clearly accused of a specific charge because we saw the scene of the Producer was “arrested desperately hiding his face” in the media reports. Even if he were not convicted in the criminal court, it would simply mean that he was “not found guilty” and would not mean that he was proved to be “innocent”. Third, the pluralized form, “devilish people”, should not refer to an individual. In fact, the “devilish people” denotes people who “forced women to appear in the AV and violated their privacy by exposing their faces and bodies; humiliated the women and caused them significant shame and hurt; yet, they hide behind and make enormous profits”. In a Japanese sentence, people never interpret that the plural “devilish people” as the singular “the Producer”. Therefore, assuming Ms. Kazuko Ito has referred the Producer to the “devilish people” is indeed, unreasonable.
(Translator’s note) If the Court found that Ms. Kazuko Ito indeed referred the Producer to “devilish people”, it would mean that the Court found that the Producer fits right into the group of people she portrayed. It would also mean that the Court has acknowledged the claim that the Producer committed sexual assault.
There are many testimonies that the AV industry has become a hotbed of sexual violence and has victimized many women even though these sexual violence cases do not result in prosecution. I, just like many others people, simply understand that Ms. Kazuko Ito’s tweet is her way of accurately pointing out the serious sexual violence issues in the AV industry. Nevertheless, it is a departure from social norm that the Court finds defamation by taking the Producer’s claim into account. If the Court started controlling the criticisms of sexual violence in the AV industry, people would feel difficulty in speaking out in public about social injustice and the violation of the human rights against victimized women.
5. Impact of Court Decision
If the Supreme Court confirmed the lower court decisions, it would cause the substantial minimization for the future accusations and support for sexual violence.
If the perpetrators could use defamation to sue and silence the supporters who speak for the victims of women’s human rights violations, the threats by using counter-accusation harassment is proved to be effective. The Supreme Court decision would become the precedent and inevitably affect subsequent trials, which is absolutely unacceptable for us, the researchers of Women’s Studies and Gender issues who have been fighting against sexual violence.
Nearly 70,000 signatures on a petition have been gathered to make “the Sexual Conduct without Consent” to be a criminal act, in the revision of the Criminal Law, and currently, the outcome of the Ministry of Justice Council is drawing attention. Female lawyers, along with women groups, raised their voices of blame at the acquittal of the Okazaki branch of the Nagoya District Court for a sexual abuse case, in which the father had been raping his own daughter for many years. This ruling was overturned by the Nagoya High Court and finalized by the Supreme Court. However, the fact that this case had disputed up to the Supreme Court itself indicates a flaw in the current Criminal Law which requires “Unrejectable” as a proof in order to win guilty verdict in rape cases.
Furthermore, in a recent Yokohama District Court case that the trial of a 17-year-old woman was sexually assaulted by her mother's companion 11 years ago, the Court found that she had been sexually abused for a long time. Nonetheless, the Court acquitted the defendant, saying there was “reasonable suspicion” to prove the fact of rape at a particular date and time. How many hurdles must be overcome to prove the victimization of sexual violence? The victim’s suffering and rage are beyond imagination.
“Sexual Conduct without Consent” means that even without an explicit NO, there is no consent unless there is a positive YES. Sexual violence crimes that have exploited women’s difficulties have been repeated. Many women are hoping that the unjustified decisions of the Tokyo District Court and the Tokyo High Court are overturned by the appeals court. The victim and her supporters had finally raised their voices with all their courage, therefore, do not chase them back to the darkness. Please remember that many women are holding their breath and watching closely.
Translated by Hiromi Noguchi
Original article in Japanese: https://wan.or.jp/article/show/9476
Opinion Brief by Chizuko Ueno on Counter-accusation against Victims of the Japanese Porn Industry
Update:The Supreme Court dismissed Attorney Ito's appeal on May 11.