The following is a guest post by Sayuri Umeda, a senior foreign law specialist at the Law Library of Congress. Sayuri has previously written blog posts on “Cambodian Law – Global Legal Collection Highlights“; “English Translations of Post-Second World War South Korean Laws“; “Laws and Regulations Passed in the Aftermath of the Great East Japan Earthquake“; and “Japanese Family Law – Global Legal Collection Highlights.”
In September 2014 I wrote a Global Legal Monitor (GLM) article titled Japan: Supreme Court Strikes Down Sentence by Lay Judges in which readers were introduced to a controversial Japanese Supreme Court judgment. (Heisei25(a)689 (S. Ct., 1st petit bench, July 24, 2014) [in Japanese].) The case involved the parents of a toddler who were found guilty of causing her death by physical abuse. The prosecutor requested 10 years of imprisonment for each parent in conformity with sentences previously applied in similar cases.
The district court panel, which included six lay judges (a quasi-jury of citizens that was introduced in Japan in May 2009), sentenced each defendant to 15 years imprisonment. On appeal, the Supreme Court reduced the sentences to 10 years imprisonment for the father and 8 years for the mother. The Supreme Court held that, in imposing 15 years of imprisonment on each of the parents, the district court had not provided a “concrete and persuasive basis” for rendering a punishment that was more severe than that which has usually been imposed. (Id. at 5.) In its sentencing decision, the district court panel had referred to recent legislation and social attitudes demanding greater respect for the welfare of children as reasons for imposing the longer sentences. The Supreme Court’s decision to reduce the sentences has given rise to further discussion about sentencing practices in such cases and the role of lay judges.
Japanese people started to pay greater attention to the problem of child abuse in the late 1980s. The issue of child abuse is now well-recognized. In 1990, the Ministry of Health, Labour and Welfare (MHLW) began compiling and publishing information annually on the number of child abuse cases reported to child consultation centers throughout Japan. In 1990, the number of such consultations was 1,101. The number increased to 2,722 in 1995; 17,725 in 2000; 34,472 in 2005; 56,384 in 2010; and, most recently, 73,765 in 2013. According to the Japan Network for Prevention of Child Abuse and Neglect Chairman Tsuneo Yoshida, “[m]ore people were becoming aware of child abuse and reporting such cases.”
Legislators and the government have tried to tackle the issue. The Child Welfare Act of 1947 (Law No. 164 of 1947) contains various provisions aimed at protecting children, but was not well-utilized until recently. For example, the Act requires that anyone who suspects child abuse to report it to the authorities. Many people in Japan, however, were not aware of this obligation.
After child abuse became a social issue and Japan ratified the Convention on the Rights of the Child in 1994, the Japanese legislature passed several acts to further enhance the protection of children from child abuse. These include the Child Welfare Amendment Act (Act No. 74 of 1997); the Child Pornography Prevention Act (Act No. 52 of 1999) and the Child Abuse Prevention Act (Act No. 82 of 2000). In addition, executive branch agencies operate the relevant child protection systems more aggressively than before to ensure the protection of children.
It is worth noting that the Japanese Supreme Court’s position on law and social change is generally that it is the legislative branch’s role to change the law to accommodate social change and the courts only apply laws as they are written. Therefore, since there is no specific penalty for death due to child abuse, the laws governing causation of death would apply.
According to one expert, in recent years Japanese courts have increased the punishment for persons who caused the death of children. In order to learn more about sentencing practices in these cases, I reviewed some of the child abuse cases reported by the Children’s Rainbow Center. I selected significant child abuse cases determined between 2000 and 2010 that were found in the Children’s Rainbow Center’s reports and also collected information on a few cases decided after 2010 from the Internet. The chart below provides information on cases where there was only one victim; where the defendant did not have a mental problem; and where the abuse by injury, desertion or confinement resulted in the child’s death (Penal Code, Act No. 45 of 1907, amended by Act No. 73 of 2011, arts. 199, 205, 219 & 221).
|Year of the trial||Charge||Prosecutor’s demand (imprisonment term for male & female)||District Court sentencing (imprisonment term for male & female)|
|2002||Murder||10 years for both||7 years for both|
|2003||Injury resulting in death & abandoning body||10 years for both||8 years for both|
|2004||Murder||15 years & 13 years||13 years & 11 years|
|2006||Injury resulting in death||13 years & 12 years||7 years & 6.5 years|
|2007||Desertion resulting in death||7 years and 8 years||5 and half years & 6 years|
|2008||Injury resulting in death||8 years||7 years|
|2008||Desertion resulting in death & abandoning body||17 years & 12 years||12 years & 8.5 years|
|2009||Injury & confinement resulting in death||12 years & 10 years||11 years & 10 years|
|2010||Injury resulting in death||10 years & 7 years||8 years & 5 years|
|2010||Desertion resulted in death||10 years for both||9.5 years for both|
|2012||Injury resulting in death||10 years for both||15 years for both|
|2012||Injury resulting in death||10 years||9 years|
|2013||Murder||20 years||17 years|
|2014||Injury resulting in death & abandoning body||10 years||8 years|
Note that the case in which the Supreme Court reduced the sentences is in bold. While the chart is not exhaustive, as compared to other sentences that I found, it appears that 15 years of imprisonment is a more severe punishment than the previous sentences imposed for child abuse resulting in death. However, under Japan’s Penal Code it is possible to sentence a defendant convicted of causing injury resulting in death to 15 years of imprisonment because the statutory maximum sentence for this charge is 20 years imprisonment (Penal Code, art. 205).
The above cases involved cruel treatment, starvation, beating, and other types of child abuse. In such cases there are often only slight variations in the circumstances that may amount to murder as compared with those constituting lesser offenses. In child abuse cases, parents often do not have a clear intent to kill their children. A child may die after escalation of abuse or due to long-term neglect. If there is evidence of the defendant’s intent to kill, the charge can be murder and a sentence of 15 years of imprisonment may fit within the range of sentences for that offense.
Justice Yu Shiraki of the Supreme Court suggested in his supplementary opinion in this recent case that the district court judges might not have ensured that the panel’s lay judges understood the basis of sentencing in the case. He suggested that the lay-judges’ decision in that case might be based on their intuition. However, it is not clear that, even if the three professional judges on the panel had explained the importance of following prior sentencing practices, the lay judges would have been persuaded. Interestingly, the relatively recent introduction of lay judges into criminal trials was said to have been designed to reflect “the sound social common sense of the public … in trial decisions.” Therefore, part of the debate related to the case is whether the Supreme Court’s decision to lower the sentences rendered by the district court can be seen to support this goal of the lay judge system.