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2017 (A) 530

2018.06.26
2017 (A) 530
Keishu Vol. 72, No. 2
Decision on a case in which digital video cassettes in which the defendant secretly filmed his criminal acts of rape and forcible indecency were found to constitute “object[s] used … in the commission of … criminal act[s]” as referred to in Article 19, paragraph (1), item (ii) of the Penal Code
Case under public prosecution for attempted rape, rape and forcible indecency
Decision of the First Petty bench, dismissed
Fukuoka High Court, Miyazaki Branch, Judgment of February 23, 2017
Under the factual circumstances of this case where the defendant filmed his criminal acts of rape and forcible indecency in the digital video cassettes without being seen by the victims, with the intention of escaping from being held criminally accountable for his own criminal acts by notifying the victims of the fact that the criminal acts which victimized them had been filmed in videos and by thus making them give up seeking the defendant’s punishment from the investigative authority, the digital video cassettes constitute “object[s] used … in the commission of … criminal act[s]” as referred to in Article 19, paragraph (1), item (ii) of the Penal Code.
Article 19, paragraph (1), item (ii) of the Penal Code and Articles 176 and 177 of the Penal Code (prior to amendment by Act No. 72 of 2017)



Penal Code

(Confiscation)

Article 19 (1) The following objects may be confiscated:

(ii) An object used or intended for use in the commission of a criminal act;



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

(Forcible Indecency)

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.

(Rape)

Article 177 A person who, through assault or intimidation, forcibly commits sexual intercourse with a female of not less than thirteen years of age commits the crime of rape and shall be punished by imprisonment with work for a definite term of not less than 3 years. The same shall apply to a person who commits sexual intercourse with a female under thirteen years of age.
The final appeal is dismissed.

Out of the number of days of pre-sentencing detention for this trial, 360 days are included in the calculation of the sentence.
The respective statements of reasons for final appeal of counsels MAEDA Yuji, TANIGUCHI Wataru and KANEMARU Sachiko and of the defendant are all allegations of factual errors and mere legal violations which do not constitute any of the grounds for final appeal specified in Article 405 of the Code of Criminal Procedure.

Considering the reasons for final appeal, the Court judges ex officio.

According to the findings and records of the judgment in prior instance and the judgment in first instance upheld by the judgment in prior instance, it is found that the defendant filmed his criminal acts in question in one case of rape and three cases of forcible indecency in four digital video cassettes (hereinafter referred to as the “Digital Video Cassettes”) without being seen by the victims, with the intention of escaping from being held criminally accountable for his own criminal acts by notifying the victims of the fact that the criminal acts which victimized them had been filmed in videos and by thus making them give up seeking the defendant’s punishment from the investigative authority. Based on the facts related to this case described above, it is reasonable to find that the Digital Video Cassettes constitute “object[s] used … in the commission of … criminal act[s]” as referred to in Article 19, paragraph (1), item (ii) of the Penal Code and, as such, may be confiscated.

Therefore, the judgment in prior instance, which upheld the judgment in first instance which sentenced confiscation of the Digital Video Cassettes under item (ii) of paragraph (1) and the main clause of paragraph (2) of Article 19 of the Penal Code, is justified.

Accordingly, the Court unanimously decides as set forth in the main text in accordance with Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure and Article 21 of the Penal Code.
Justice KOIKE Hiroshi

Justice IKEGAMI Masayuki

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya
(This translation is provisional and subject to revision.)