The document discusses current trends in regulating sexual expression and the intricacies of Japan's obscenity laws, particularly focusing on Article 175 of the criminal code during the Rokudenashiko case. It highlights the legal charges against Rokudenashiko for distributing obscene materials, the timeline of her arrest and legal proceedings, and the standards for classifying obscenity, including implications for artistic expression. The document critiques the enforcement of these laws, their potential unconstitutionality, and the societal attitudes that influence legality around sexual content.

1. The Current Trends of Regulation against
Sexual Expression. The Logic and the Politics
behind the Application of the Obscenity
Law, the Article 175 of the Criminal Code.
27,Oct 2014 Temple University Japan
Link Law Office, Kito and Partners
Attorney at Law
Takashi Yamaguchi

2. Current Status of the Rokudenashiko Case
1) What is Rokudenashiko charged with?
Distributing obscene electromagnetic records.
2) What is her legal status?
“Higisha”(the Accused), Not “Hikokunin”(the Defendant)
Investigation is still going on.
Prosecutor is yet to make the decision.
3) Timeline
July 12, Arrested
July 14, Prosecutor files a motion seeking a detention order.
July 15, Judge at Tokyo District Court issues a detention order.
July 17, Defense Attorneys file a “Jun Kokoku”(an appeal)
against the detention order.
July 18, A panel of judges at the TDC dismisses the detention
order. Rokudenashiko is freed.

3. Criminal Code: Article 175 -1)
1) A person who distributes, sells or displays in public an
obscene document, drawings, recording media
containing electromagnetic records 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
distributes obscene electromagnetic records or other
data.
2) The same shall apply to a person who possesses the
objects or data mentioned in the preceding clause for the
purpose of sale.
*Definition for “Obscene” is not described in the statute.

4. Criminal Code: Article 175 -2)
‣No victims required. Aims to protect “Public
Morality”
‣Does not punish “creation”, “distributions
made to small number of specified people”
‣”Adult Only” is not a defense.
‣No limitations on forms of expression.

5. Defining Obscenity
Koyama v. Japan 1957(Lady Chatterley Lover's
case)
“to be obscene, the literature in question must
be such that it is harmful to the normal feeling
of shame, excites and stimulates sexual desire,
and runs counter to good moral concepts
regarding sex”
3 requirements(“Chatterley Standard”).
1) Strongly sexually arousing or stimulating
2) Violating the sexual sense of shame in an average person
3) Against decent concept of morals concerning sex

6. Inherent Shame Theory
“Lady Chatterley Lover's case” ruled on “Philosophical
Grounds”
“Even uncivilized people hide their genitals”
“Mankind across the world possesses an inherent,
natural sense of shame in regards to the act of sex.”
”This sense of shame separates mankind from animals
and that no culture on Earth allows sexual acts to be
performed in public.”
“In all cultures the sex act is a private act indicative of
the sense of shame the act produces.”

7. Harm of Pornography
“Since obscene literature excites and stimulates sexual
desire, it must, therefore, produce a sense of shame in
the reader.”
“Too much literary stimulation would “, “First, it would
paralyze mankind's innately good conscious in regards to
the subject of sexual intercourse and sex-related matters.
Second, this paralyzing would lead mankind to lose its
control of reason. Lastly, this loss of reasoning power
would make mankind behave, licentiously and
unrestrainedly, and induce him to defy the established
concept of sex morality and order.“
“It could result in chaos and confusion across society if
enough reader were reading obscene material at the
same time “

8. Moral Physician’s Approach
The courts are, “Invested with the duty of
protecting society from moral degeneration,
and must approach the problem of obscenity
with a logical, critical attitude like a physician
treating a patient. Thus, the changing attitudes
of society are not to be taken into account by
the courts and the courts are to take the
approach of an objective viewer when faced
with questions of obscenity.”

9. Obscenity is an Issue of Law
“Lady Chatterley Lover's case” ruled that
obscenity is an issue of law and not of fact.
* Not bound by evidence!

10. Various Cases after the “Lady Chatterley”-1)
De Sade case (Ishii v. Japan)
‣ Artistic value could potentially absolve a
material from the label of obscenity
‣ Allowed external factors to be considered.

11. Various Cases after the “Lady Chatterley”-2)
Yojohan fusuma no shitbari case (Nagai Kafu on Trial?)
Criteria: “Shakai-tsuunen”=“healthy social conscience”
1) the relative boldness, detail and general style of its depictions of
sexual acts;
2) the proportion of the work comprised of sexual
descriptions;
3) the relationship in a literary work between sexual descriptions
and the intellectual content of the story;
4) the degree to which artistry and thought content mitigate the
sexual excitement induced by the writing; and
5) the relationship of sexual portrayals to the structure and unfolding
of the story.
Overall, the work should be classified as obscene if it wantonly excites
and/or stimulates sexual desires, affronts the ordinary person’s
normal sense of shame, and violates proper concepts of sexual
morality.

12. Various Cases after the “Lady Chatterley”-3)
Robert Maplethorpe case 2008
‣"As a highly acclaimed contemporary artist, Robert Mapplethorpe had produced
photographs focused on the essence of human existence through the depictions of
the body, sexuality and nudity. The disputed book was a collection of his major works,
and the photographs assembled in the book were Mapplethorpe’s most important
and recognized work; therefore, the publication was aimed at providing the audience
with an opportunity to examine the artistic qualities of Mapplethorpe’s work as a
whole."
“Photographs in the book captured a wide variety of themes, including self-portrait,
flowers, still objects, and male and female nudity. Among the 384 pages there were
only nineteen sexually explicit photographs; therefore, the quantity of such images
contained in the book was quite small. In addition, these images were in black and
white, and did not directly depict sexual intercourse. Considering the artistic values
of the work, the weight of sexually explicit images within the book as a whole, and the
technique and skills needed to deliver the artistic values, the Court found that they all
contributed to moderate the work’s appeal to the prurient interest. "
"It was difficult to accept the argument that the book in question mainly appeals
primarily to the sexual interest of people who see it."

13. Various Cases after the “Lady Chatterley”-4)
‣Respecting the “Healthy Social Trend”(“Shakai-tsuunen”)
at the time of the Customs Office’s
confiscation of the book in 1999, the Court decided
that it no longer fell into the category of materials that
violated society’s healthy sexual morality as defined in
the Customs Law.

14. How does “artistic value “ matter?
“Chatterley Standard”
1) Strongly sexually arousing or stimulating
2) Violating the sexual sense of shame in an
average person
3) Against decent concept of morals concerning
sex

15. What is the “Current Standard?”
“Million Shades of Grey”
‣TEXT OK
‣Nudity OK
‣Pubic Hair OK
‣Genitals ？
‣ Genitals with Intercourse / sexual acts ☠
*The trend has been to relax the standard. But this trend for
relaxation is not guaranteed to last. The courts are free to
become strict in their rulings once more. There is nothing to stop
them from deciding that text, pubic hair, scenes of nudity, and
scenes of sexual acts, even with mozaics, are obscene.

16. Current Trends
‣Police are trying to push the line back from
“genitals”.
ex. “Rokudenashiko”, “Aichi Prefectural Art
Museum”
‣Background?
Fears that “Vagina Art” in major magazines,
Robert Maplethorpe Case may change the “Social
Trend”.
‣ 2020 Tokyo Olympic
‣Police wants to “hone” their last weapon. New
legislation is difficult to pass.

17. Arguments on Rokudenashiko Case
‣Is the data of the vagina obscene?
No. “Martian Landscape”, mere data does not appeal to emotions or the
senses, or arouses enough imagination to be suggestive of actual sexual
intercourse or acts.
‣Discrimination against female Genitalia?
‣Are there other more hideous porn that the
police should be going after?
‣Judging the quality of an expression is not the
business of the government, unless there is a
specific individual as a victim.

18. Article 21, Constitution of Japan
1) Freedom of assembly and association as well
as speech, press and all other forms of
expression are guaranteed.
2) No censorship shall be maintained, nor shall
the secrecy of any means of communication be
violated.
‣I believe Article 175 is unconstitutional.

19. Institutional difficulties on arguing the
constitutionality of a legislation.
• Cannot challenge the effectuation of the
legislation or the ordinance itself.
• No amicus curiae.

20. Reluctance of the Courts to declare legislations and
ordnances as unconstitutional
Only 8 cases since after World War II. None
concerns the issue of free speech.
•Appointment of Judges
•“Career System”
•Conservative Political Background
•Supreme Court Judges serving short terms
•Judges living restricted life.

21. Real Politique concerning Article 175
‣Get rid of article 175?
Present application of article 175 is “content neutral”. The
examples from other nations aren’t.
‣Article 175 as an excuse?
‣Does the Japanese want the article 175 to be
abolished.

22. Key Points on Free Speech
‣Relativism
‣Democratic decisions(majority vote) only have
tentative / temporary righteousness
‣Give minority the chance to become a majority
‣Sense of values change
ex. “Shunga”
‣Future Generations have the “Right to Know”
‣”Pro Censorship” people behaving as the
“privileged class”

23. Contact me at
Link Law Office, Kito and Partners
Kojimachi Parkside Bldg, 3F 4-7 Kojimachi, Chiyoda-ku,
Tokyo 102-0083, JAPAN
tel ：+81-(0)3-3515-6681
fax：+81-(0)3-3515-6682
mail： yama_ben@nifty.com
twitter: @otakulawyer
FACEBOOK: Takashi Yamaguchi
Blog: http://yama-ben.cocolog-nifty.com/