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2016 (A) 1731

2017.11.29
2016 (A) 1731
Keishu Vol. 71, No. 9
Judgment concerning whether the perpetrator’s sexual intention is required for the formation of forcible indecency or not
Case charged for violation of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children, for forcible indecency, and for violation of the Act on Prevention of Transfer of Criminal Proceeds
Judgment of the Grand bench, dismissed
Osaka High Court, Judgment of October 27, 2016
Although there are some cases in which, as one of individual and specific conditions for determining whether an act falls under an “indecent act” stipulated in Article 176 of the Penal Code (prior to the revision by Act No. 72 of 2017) or not, the perpetrator’s purpose and other subjective conditions should be considered as a factor for determination, the perpetrator’s sexual intention is not a requirement for the formation of forcible indecency.
Article 176 of the Penal Code (prior to the revision by Act No. 72 of 2017)



Penal Code (prior to the revision by Act No. 72 of 2017)



Article 176 A person who, through assault or intimidation, forcibly commits an indecent act upon a male or female of not less than thirteen years of age shall be punished by imprisonment with work for not less than 6 months but not more than 10 years. The same shall apply to a person who commits an indecent act upon a male or female under thirteen years of age.
The final appeal is dismissed.

The 280 days of pre-sentencing detention for this instance are regarded as implementation of part of the sentence.
1. Regarding the respective reasons for final appeal argued by the defense counsels, MATSUKI Toshiaki and SONODA Hisashi and among the reasons for final appeal argued by the defense counsel, OKUMURA Toru regarding the reason alleging violation of a judicial precedent and violation of laws and regulations by citing a Supreme Court judgment (1968 (A) No. 95, Judgment of the First Petty Bench of the Supreme Court of January 29, 1970, Keishu Vol. 24, No. 1, at 1) (hereinafter referred to as the “1970 Judgment”)

(1) A summary of findings of the facts constituting the crime charged stated in I-1 of the judgment of first instance is as follows: Knowing that the victim was a girl under thirteen years of age, the defendant committed indecent acts, such as forcing the victim to touch his penis and hold it in her mouth, and touching the victim’s private parts.

The findings of the judgment of first instance are that the explanation provided by the defendant that he had no intention of whetting and satisfying his sexual appetite but an intention of obtaining money cannot be rejected, and therefore a reasonable doubt remains about determining that the defendant had a sexual intention. The judgment of prior instance affirmed these findings of the judgment of first instance, and then held that it is inappropriate to maintain the 1970 Judgment at this time because forcible indecency is formed when the perpetrator objectively conducts an act violating the victim’s sexual freedom with an awareness of that effect, and therefore whether the perpetrator has a sexual intention or not does not affect the formation of the crime. Accordingly, the judgment of prior instance affirmed the judgment of first instance, which found the above-mentioned essential facts constituting the crime charged stated in I-1 of the judgment.

(2) The argument of the defense counsels alleges that the judgment of prior instance made a mistake in construction and application of Article 176 of the Penal Code prior to the revision by Act No. 72 of 2017 (hereinafter referred simply to as “Article 176 of the Penal Code”) and made a determination that contravenes the 1970 Judgment, which held that, for the formation of forcible indecency, the act is required to be conducted under a sexual intention of whetting or satisfying the perpetrator’s sexual appetite. Therefore, the Court will consider this allegation.

(3) The 1970 Judgment was on an appeal case against the judgment of prior instance, which affirmed the judgment of first instance, which held that facts of forcing the victim under threat of intimidation to become naked and taking pictures of her with an intention of taking revenge on her by taking pictures of her while naked fall under forcible indecency stipulated in the first sentence of Article 176 prior to the revision by Act No. 91 of 1995. The 1970 Judgment held that, for the formation of forcible indecency, as it is called, stipulated in the first sentence of Article 176 (prior to the revision by Act No. 91 of 1995), the act is required to be conducted under a sexual intention of whetting or satisfying the perpetrator’s sexual appetite, and therefore an act of using intimidation to make a woman become naked and taking pictures of her may otherwise constitute compulsion and other crimes but does not form forcible indecency when the act was conducted under the sole purpose of taking revenge on the woman or insulting and abusing her. Accordingly, the 1970 Judgment quashed the judgment of prior instance by stating that both the judgment of first instance and the judgment of prior instance, which held that forcible indecency is formed without a sexual intention of whetting or satisfying one’s sexual appetite, etc., made a mistake in the construction and application of Article 176 of the Penal Code (prior to the revision by Act No. 91 of 1995).

(4) However, it is difficult to maintain the above construction shown in the 1970 Judgment.

(A) Since the enactment of the current Penal Code and until this moment, no phrase has been prescribed in the text of the law on the purpose of requiring a sexual intention, which is the perpetrator’s subjective condition other than an intention of committing the crime, as a requirement for the formation of forcible indecency, and there has been a persuasive opinion that, regarding forcible indecency, whether the perpetrator’s sexual appetite was whetted or not has no effect on the formation of the crime. On the other hand, the 1970 Judgment required a sexual intention for the formation of forcible indecency, and therefore held that compulsion and other crimes may formed if there is no sexual intention, without stating any clear reason for differentiating a case with a sexual intention, in which forcible indecency (its statutory penalty at that time being imprisonment with work for not less than six months but not more than seven years) is formed, and a case without a sexual intention, in which only compulsion (its statutory penalty at that time being imprisonment with work for not more than three years), etc. is formed. Moreover, the judgment did not give a specific explanation on the consistency with a coherent construction that, for the formation of rape, which is construed as an aggravated type of forcible indecency, the perpetrator’s subjective condition other than an intention of committing the crime is not required.

Basically, a criminal provision pertaining to sexual damage or the construction of the provision has a characteristic that it cannot determine subjects of punishment without taking into account how such damage is accepted by society. Also in foreign countries, since 1970, provisions pertaining to sexual damage have been revised according to actual conditions of each country, and Germany, which is sometimes pointed out to have affected theories in Japan at the time of 1970, has also conducted repeated revisions of law to revise the fundamental part of requirements for constituting the crime. These trends in legislation show us that criminal provisions pertaining to sexual damage have been revised according to the reality of sexual damage and changes in public awareness about it in each country of different times.

From these points, the 1970 Judgment can be understood that it required in a blanket manner the act to be conducted under a sexual intention of whetting or satisfying the perpetrator’s sexual appetite, regardless of the nature and content of the act, as a requirement for the formation of forcible indecency, to determine the extent of subjects of punishment for the crime, taking into account how the crime was accepted by society at the time. However, this construction cannot be deemed as solid and unchallenged.

(B) “The Act for the Partial Revision of the Penal Code, etc.” (Act No. 156 of 2004) made heavier the statutory penalty for forcible indecency from imprisonment with work for not less than six months but not more than seven years to imprisonment with work for not less than six months but not more than 10 years and the statutory penalty for rape from imprisonment with work for a limited term of not less than two years to imprisonment with work for a limited term of not less than three years to make them consistent with the normative awareness of the public about crimes pertaining to sexual damage. Furthermore, given the reality, etc. of crimes pertaining to sexual damage and to become able to respond to a case according to its reality, “the Act for the Partial Revision of the Penal Code” (Act No. 72 of 2017) newly created crimes of forcible intercourse, etc. by combining part of acts that had been treated as subjects for punishment for forcible indecency and acts that had been treated as rape to include both men and women in the possible object and subject of the new crimes, and made heavier the statutory penalty for the new crimes to imprisonment with work for a limited term of not less than five years, as well as newly created a crime of indecency by a person who has custody and crimes of intercourse, etc. by a person who has custody. It is apparent that these revisions reflect changes in how society generally accepts crimes pertaining to sexual damage and the reality of the crimes.

(C) In light of the above points, in present times, in construing the requirements for the formation of forcible indecency, the Court should look at whether the victim suffered sexual damage or not and the content and extent of the damage. It is inevitable to say that it has become further difficult to find substantial grounds for supporting the legitimacy of the construction of the 1970 Judgment, which treated the perpetrator’s sexual intention as a requirement for the formation of the crime, and therefore it has now become hard to maintain the construction.

(5) With that being said, among acts that should be evaluated as an indecent act stipulated in Article 176 of the Penal Code, there are acts that, as an act leading to rape, can be immediately evaluated as an indecent act for the reason that the acts themselves have an apparent sexual nature and can be confirmed without doubt to have a sexual meaning, regardless of the specific situation in which such acts were conducted and other factors. On the other hand, there are acts that people cannot tell whether the acts themselves have an apparent sexual nature or not, and for which it is difficult to evaluate whether they have a sexual meaning or not without taking into account the specific situation in which such acts were conducted and other factors. Moreover, given the severity of the statutory penalty stipulated in the same article, not all the acts that can be seen to have a hint of a sexual meaning should be evaluated as deserving of punishment as an indecent act stipulated in the same article. The question of what kinds of acts have a sexual meaning and should be seen to deserve punishment pursuant to the same article is a matter of normative evaluation that should be determined objectively in consideration of how society at that time generally accepts crimes pertaining to sexual damage.

According to the above-mentioned facts, in order to determine whether an act falls under an indecent act stipulated in Article 176 of the Penal Code or not, the Court should first duly examine whether the act itself has a sexual nature or not and its extent, then give comprehensive consideration to the specific situation in which such act was conducted and other factors, as the case may be, and finally determine whether the act has a sexual meaning or not and the strength of the sexual meaning based on specific facts according to individual cases. Therefore, it is undeniable that there are some cases in which, as one of such individual and specific conditions, the perpetrator’s purpose and other subjective conditions should be considered as a factor for determination. However, although there are such cases, it is not appropriate to require the perpetrator’s sexual intention other than an intention of committing the crime as a requirement for the formation of forcible indecency in a blanket manner. The construction made in the 1970 Judgment should be amended.

(6) Looking into this case, the act itself stated in I-1 of the judgment of first instance has an apparent sexual nature. Without the need to consider other conditions, the act has a strong sexual meaning and is apparently an objectively indecent act. Accordingly, the conclusion of the judgment of prior instance, which affirmed the judgment of first instance, which confirmed the formation of forcible indecency, is appropriate.

For the reasons above, according to Article 410, paragraph (2) of the Code of Criminal Procedure, it is appropriate to amend the 1970 Judgment so far as it contravenes the above opinion of this Court and to maintain the judgment of prior instance. Therefore, the argument of the defense counsels alleging violation of the judicial precedent does not constitute a reason for quashing the judgment of prior instance. In addition, such maintenance of the judgment of prior instance does not constitute a violation of Article 31 of the Constitution of Japan and other provisions.



2. Among the reasons for final appeal argued by the defense counsel, OKUMURA Toru, the remaining reasons alleging violation of a judicial precedent are irrelevant in this case because the cited judicial precedent addressed a different type of facts, or lack a premise because the cited judicial precedent did not indicate the reasoning as argued by the defense counsel; and the rest are assertions of violation of laws and regulations and inappropriate sentencing; and none of these reasons can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.



Consequently, pursuant to Article 414 and Article 396 of the Code of Criminal Procedure and Article 21 of the Penal Code, the Court unanimously decides as set forth in the main text.



Public prosecutors HIRAMITSU Nobutaka and NAKAHARA Ryoichi attended the trial.
Justice TERADA Itsuro

Justice OKABE Kiyoko

Justice ONUKI Yoshinobu

Justice ONIMARU Kaoru

Justice KIUCHI Michiyoshi

Justice YAMAMOTO Tsuneyuki

Justice YAMASAKI Toshimitsu

Justice IKEGAMI Masayuki

Justice OTANI Naoto

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice KANNO Hiroyuki

Justice YAMAGUCHI Atsushi

Justice TOKURA Saburo

Justice HAYASHI Keiichi
(This translation is provisional and subject to revision.)