2025.01.27

2024 (A) 753

Keishu Vol. 79, No. 1

(Criminal Case) Decision concerning whether a person who does not have the status of a person having custody of a person under 18 years of age is held guilty of the crime of sexual intercourse, etc. by a person having custody of a person under 18 years of age (Article 179, paragraph (2) of the Penal Code before amendment by Act No. 66 of 2023) if the person who does not have the status of the person having custody, in conspiracy with the person having custody, engages in sexual intercourse, etc. with that person under 18 years of age

Case charged to the court for the crime of sexual intercourse by a person having custody of a person under 18 years of age, and violation of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children

Decision of the First Petty Bench, dismissed

Hiroshima High Court, Matsue Branch, Decision of May 31, 2024

If a person who does not have the status of a person having custody of a person under 18 years of age (such person having custody is referred to below as the "person having custody"), in conspiracy with a person having custody, engages in sexual intercourse, etc. with the person under 18 years of age by taking advantage of the influence arising from the fact that the latter person has custody of that person under 18 years of age, the person who does not have the status of the person having custody is held guilty as a co-principal of the crime of sexual intercourse, etc. by a person having custody of a person under 18 years of age (Article 179, paragraph (2) of the Penal Code before amendment by Act No. 66 of 2023) pursuant to Article 65, paragraph (1) of the Penal Code.

Article 65, paragraph (1) of the Penal Code; Article 179, paragraph (2) of the Penal Code (before amendment by Act No. 66 of 2023)

The final appeal is dismissed.

Out of the number of days of pre-sentencing detention for this instance, 110 days are included in the calculation of the sentence.

The reasons for final appeal stated by the defense counsel, OKUMURA Toru, are arguments of a mere violation of laws and regulations and inappropriate sentencing, and none of these reasons constitutes any of the reasons for final appeal as referred to in Article 405 of the Code of Criminal Procedure.

It is appropriate to consider that if a person who does not have the status of a person having custody of a person under 18 years of age (such person having custody is referred to below as the "person having custody"), in conspiracy with a person having custody, engages in sexual intercourse, etc. with the person under 18 years of age by taking advantage of the influence arising from the fact that the latter person has custody of that person under 18 years of age, the person who does not have the status of the person having custody has the status of co-principal of the crime of sexual intercourse, etc. by a person having custody of a person under 18 years of age (Article 179, paragraph (2) of the Penal Code before amendment by Act No. 66 of 2023) pursuant to Article 65, paragraph (1) of the Penal Code. The accused is not a person having custody of the child in question, who was 16 years of age at the time of the crime, but the accused, while sharing the same intention with the child's mother who is the person having custody of the child, engaged in sexual intercourse with that child, who was persuaded or otherwise influenced by the mother into accepting sexual intercourse with the accused. Therefore, it is clear that the accused is held guilty as a co-principal of the crime of sexual intercourse, etc. by a person having custody of a person under 18 years of age.

Accordingly, 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, the Court unanimously decides as set forth in the main text of the decision.

Justice SAKAI Toru

Justice YASUNAMI Ryosuke

Justice OKA Masaaki

Justice MIYAGAWA Mitsuko

Justice NAKAMURA Makoto