Codifying Obscenity in Japan

by Soyini A. Hamit

A 40-year-old man from Kobe, Japan was arrested by the Okayama Prefectural Police on Monday for allegedly selling obscene illustrations from his website. He reportedly plead guilty to the crime, saying that he was motivated by the desire for money. Under Japan’s penal code, Article 175:

A person who distributes, sells or displays in public an obscene document, drawing or other objects shall be punished by imprisonment with work for not more than 2 years, a fine of not more than 2,500,000 yen or a petty fine. The same shall apply to a person who possesses the same for the purpose of sale.

The code fails to define obscenity, so how do Japanese legislators determine what constitutes “obscene material”?

Current interpretation of the law originates from the response to the translation and distribution of Lady Chatterly’s Lover by D.H. Lawrence. In 1957, the Supreme Court of Japan ruled that the translation was obscene. Their decision states:

…to be obscene the literature in question must be such that it is harmful to the normal feeling of shame, it excites and stimulates sexual desire, and runs counter to good moral concepts regarding sex.

The practice of visually obscuring exposed body parts and censoring portions of images that could cause sexual arousal, was adopted to avoid obscenity charges and remains in use today. As a result, cases of obscenity in printed materials were rarely brought before the court. Instead, the publishing industry was left to regulate itself.

In 2004, Tokyo publisher Motonori Kishi was convicted of distributing books with uncensored sex scenes, signaling a shift in the court’s focus on pornographic material in print. Kishi, along with an editor and writer involved with the creation and selling of the manga Misshitsu (Honey Room), were charged a fine of 500,000 yen. Kishi was also given a suspended sentence of one year in prison. He took the case on appeal to the Tokyo High Court, saying that Article 175 of the penal code violates the constitutional right to freedom of expression. Under Article 21 of Japan’s constitution:

Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

The court rejected Kishi’s claim and upheld the conviction, but reduced his suspended sentence to a fine of 1.5 million yen. While maintaining that the comics were obscene, Presiding Judge Kejiro Tao said that the original sentence was too harsh because of the gap in obscenity in the comic compared with what is seen in real images.

By charging publishers with obscenity violations after publication, the Japanese government avoids censoring the content of printed materials. Legislation like the recently amended Youth Healthy Development Ordinance places restrictions on who can access adult materials, encouraging publishers to self-regulate their content. With the recent increased scrutiny of manga, it remains to seen whether other publishers will mount legal challenges to the restrictions.

For an overview of the issues surrounding manga censorship in Japan, check out this article from Anime News Network.

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Soyini A. Hamit is a comic fan and writer masquerading as a laboratory technologist. You can follow her fascination with language and music at Word Sounds Have Power.