255.fullDomestic Violence Victims as Homicide Offenders: A Study of Gender Ideology in the Japanese Criminal Justice System

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2004 8: 255Gender Technology and DevelopmentKana Takamatsu

Ideology in the Japanese Criminal Justice SystemDomestic Violence Victims as Homicide Offenders: A Study of Gender

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Domestic Violence Victims as

Homicide Offenders:A Study ofGender Ideology in the Japanese

Criminal Justice System

KANA TAKAMATSU

Kana Takamatsu, Ph.D. Student, Graduate School of Frontier Science, University of

Tokyo, Japan.

This study attempts to identify the biases and assumptions reflected in intra-household

gender roles, to relate these roles to homicide cases in Japan where the wife kills the

husband, and finally, to examine how women criminal offenders are ideologically treated.From case studies, it is clear that women criminal offenders are considered through

biases and assumptions within the criminal justice system. If the character of the offendermirrors this prevalent image, she tends to not bepunished strictly by the criminal justicesystem. However, if the character of the offender goes against the image of women, she

tends to be punished strictly. Their personality as women is taken into account to a

greater extent than the actual crime. In addition, the backgrounds and reasons for femalehomicide casesin this case domestic violence-were not considered serious crimes,

particularly until the Law on the Prevention of Spouse Violence and Protection of Victimswas passed.Achieving gender equality in a society is crucial to not only reduce thenumber ofvictims of domestic violence, but to also give a fair judgment (not necessarilya

light punishment)to women criminal

offenders.

Domestic Violence in Japan

According to the study conducted by The Cabinet Office in 2002,one out of every five women living in Japan has been abused by herhusband and/or partner. Five percent of the women have felt that their

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husbands and/or partners will kill them. Women who sought medicaltreatment following abuse by their husbands and partners are four timesmore than men in the same situation. Women form 91.7 percent of thevictims of crime in spousal relations (Gender Equality Bureau, CabinetOffice, 2003).

Domestic violence (DV hereafter) against women violates the human

rights of women (Watanabe, 1994: p. 14). Japanese law implies the exist-ence and protection ofhuman rights for both women and men. However,DV had not been considered a serious crime for a long time in Japanesesociety. DV was considered non-criminal and was ignored for a longtime. Therefore, there is little information aboutDV in the criminal justicesystem.A small amount ofinformation aboutDV is shown in the statistics

of the Supreme Court to explain the reasons for divorce (Kakuta, 1994:

p. 196). Only 10 percent of divorce cases are taken to arbitration in a

family court (ibid.). Statistically, DV is the most common reason for di-vorce if physical and mental violence are combined. But according toKakuta (ibid.), DV is not taken into account, but is used for making an

agreement of divorce.

There has been a change in the legal system regarding DV The Lawon the Prevention of Spouse Violence and Protection of Victims was

passed in the Diet on 6April 2001, and became influential as of 13 October2001 (it was fully influential beginning inApril 2002).After the law was

put into practice, a total of 1,666 spouse/partner cases were filed in 2002.Ofthese, 1,528 arrests related to husbands killing or insulting their wives.In 2002, 95.8 percent of the insult victims, 96.3 percent of the assault

victims, and 60.9 percent of the homicide victims were women. It showsthat the ratio of homicide cases was quite high in comparison to otherforms of violence within spouse or partner relationships. In 77 cases,wives or women partners committed homicide against their husbands ormen partners in 2002. The Law on the Prevention of Spouse Violenceand Protection of Victims allows district courts to issue six-month restrain-

ing orders against abusers and to evict abusers from the home for as longas two weeks. The law makes no distinction between couples who are

legally married and those who are living together.The main change after the DV law was enacted has been within admin-

istrative sectors, especially the police department. The number ofarrestedabusers increased by 20 percent, and in addition the number of womenwho came to consulting centers has also increased. Between 13 and31 October 2001, 1,318 cases claiming legal protection were filed, and

protection was granted to 1,019 of these cases. These numbers show that



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DV is being considered a crime. Compliance with the law in general isconsidered very high in Japan compared with other countries inAsia. Itwas indicated, for instance, that the police did not take care of the DVcases after the law was implemented in South Korea (Japan-Korea JointResearch Project for the Development of the Social System to PreventViolenceAgainst Women in the Family-Possibilities inAsia, 2001).

There are some issues that should be revised in this law. The law cur-

rently contains a provision for the courts to issue emergency injunctionsagainst abusive partners without a hearing when danger is imminent forthe victim. This, however, only focuses on actual physical abuse by a

partner, and should clearly be extended to include mental and verbalabuses as well. In addition, the safety of the victims and their children is

not guaranteed. Finally, support systems for abused women to assist themin starting a new life are inadequate. Besides, despite the fact that DVhas been considered a crime since 2001, it cannot be assumed that DV is

taken into account adequately enough as a background ofhomicide cases,

though it certainly should be.

Japanese Society as a Patriarchal Society

Because DV is strongly related to and caused by gender inequality, it is

important to know how Japanese society is a patriarchal one in order tounderstand both the gender biases prevalent in the criminal justice systemin Japan, and the difficulties abused women face in starting a new life.

According to the Human Development Report of 2003, the human devel-

opment index (HDI) ofJapan ranks in ninth place out of 173 countries. Inthe gender empowerment measure (GEM) that uses variables constructed

explicitly to measure the relative empowerment of women and men in

political and economic spheres of activity, Japan ranks at number 44.These statistics reveal the presence of a gender gap, and the fact thatwomens position in Japanese society is not equal to that of mens. Most

especially, women are excluded from political and economic activitiesand occupy a peripheral position within society in Japan.

It has to be mentioned that peoples thoughts have changed.Accordingto a survey by the Yomiuri-Shinbun newspaper, 73 percent of all peopleinterviewed disagree with the rigid gender division of labor which

categorizes men as breadwinners and women as housewives. Of the peopleaged betveen 20-40, more than 85 percent disagreed. This shows that

rigid ideas of the gender division of labor are breaking dowTn, especially



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in younger age groups, and that gender relations have been changingover time.

Despite this change, womens participation in many areas is still low.In Japan, women parliamentary members and women business managersaccount for a low percentage of the total. Japan also has a slightly lowerfemale labor force participation than major nations. There is no significantgap between Japan and the Western nations in basic legal frameworksfor achieving gender equality. However, unlike France and Sweden for

example, Japan provides its women workers with insufficient supportmeasures for

balancingwork and childcare. Women workers with

higheducational backgrounds do not enjoy sufficient job/promotion oppor-tunities to allow them to demonstrate their full potential, because Japanstill has various social systems/practices based on traditional concepts.The Cabinet Office surveyed characteristics and peoples awareness

regarding gender equality in major nations (Japan, South Korea, the

Philippines, US, UK, Germany, and Sweden) in the field of family life,the workplace, school, politics, legal and institutional framework,and social

standards,customs and

practices.Women in Western nations

and Japan strongly feel the presence of gender inequality in the work-

place and politics, although women in the Western nations alreadyenjoy a significantly higher level of participation in society. Women in

Japan and South Korea strongly feel that men enjoy a more favorable

position in family life, suggesting that the people of these two nationsare still largely restrained by domestic gender roles. On the other hand,for the areas in which the respondents agree there is gender equality,

school accounts for the largestpercentagein

Japan and all other surveyednations because it guarantees fair opportunities to women and men and

puts more emphasis on academic performance than gender.Among female

Japanese and Philippines respondents and male German respondents, theanswer option Women should endeavor to empower themselves occupiesthe largest percentage, while among male Japanese respondents andwomen and men in the other nations, the answer option Correcting rigidsocial standards accounted for the largest percentage. These survey results

indicate that the largest obstacle to gender equality is traditional socialstandards, irrespective of how successfully women participate in thelabor market.

Japan has a larger gender wage gap than the other nations. Class of

position and length of service years have the most significant impactson the wage gap between women and men. Japan has a lower percentageofwomen managerial workers than the other surveyed nations.Although



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each other in 44.3 percent of the cases, while in only 13 percent of thecases were they strangers. This means that nearly 90 percent of homi-

cide cases occur within relationships. On the other hand, only 4.3 percentof cases involving injury occurred within the household. This does not

imply that injury cases do not occur within the household. Instead,it simply reinforces the principle that the criminal justice system doesnot intervene in family affairs, thereby preventing such cases from be-

coming visible in the first place. This proves that violence within thehousehold does not become visible to society until the abused is killed.

Women, Criminal Offenders in the. Criminal Justice System

Pollak (1950) explains that the female crime ratio is low because womenare treated generously in the criminal justice system, a male-dominated

sphere. In this sphere, police officers do not want to arrest them, prose-cutors do not want to prosecute them, and judges do not want to handdown sentences to them.

Miyazono (1994: p. 239) saysthat women receive

lighter sentences than men because almost all crimes committedby womenare not serious, and moreover, they are not the primary motivators of thecrime. In addition, women criminals are not threats to society because

they do not commit crimes that require general prevention (seeAsadaet al., 1996). That is why women receive light punishments. Therefore,she argues, women criminal offenders are not, as Pollak says, treated

generously.On the other

hand,it has also been said that women are treated more

strictly than men in the criminal justice system. When a woman commitsa crime, it is considered not only an activity that goes against the law, butalso an activity that goes against the model of women inherent in both

society and the criminal justice system. Young women offenders aretreated more strictly than young men offenders. In addition, women crim-inal offenders are treated more strictly when their image goes againstthat ofwomen as mothers and wives (Morrissey, 2003) a concept that is

also inherent in the criminal justice system.Those involved in the criminal justice system clearly have a stereo-

typical idea of women, and hence women criminal offenders are treated

ideologically, not judicially, within the system, which has different stand-ards for women and men offenders. In this system, what percentage of



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women and men are not prosecuted? I would like to show the non-

prosecution rate of the last 10 years in Figure 1 (not including violations

of traffic regulations).According to Figure 1, the ratio of mens non-prosecution is approxi-

mately 20-30 percent, while that of women is higher at 50 percent. Itcan be seen that in any type of crime, women tend to be prosecuted muchless than men, which Pollak (1950) and Miyazono (1994) explain indifferent ways.

Figure 1

Ratio ojNon prosecution of Women and Men Offenders in Japan

Source: White Paper on Crime, 2000.

What punishments have women homicide offenders received? One setof statistics regarding women homicide offenders and punishments was

compiled by the Womens Crime Study Group and covered the years

1976-1980. The total number of homicide cases was 323, and the stay ofexecution ratio was 70.6 percent. However, in homicide cases againstthe husband/partner (75 cases), the stay of execution ratio was only 48

percent. Of these 75 cases, 36 led to imprisonment with execution. Onecase received two and a half years imprisonment; seven cases received

up to three years imprisonment; 18 cases received up to five years impris-onment ; nine cases got up to 10 years imprisonment; three cases calledfor more than 10 years imprisonment; and one case was deemed worthyof lifetime imprisonment. The ratio of stays ofexecution (for both womenand men) on homicide cases was 29.4 percent in 1981, therefore, theratio of stays of execution in the case ofwomen was relatively high. Thisratio is lowest in cases where family members are the victims.



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Analysis ofCourt Verdicts

Court verdicts show how women criminal offenders are ideologic-ally treated by the criminal justice system. Two case studies from 1979and 1994 were analyzed.All the information about these trials is from

Hanreijihou (Hanreijihou, 953/1539). Given the scope and limitations ofthis article, it is important to note the following. While crimes occur in

many forms, this article will focus on those crimes involving women

committing homicide against their husbands/partners as a consequenceof

havingbeen a victim of domestic

violence. Obviously, thereare two

kinds of crimes in these cases: homicide against husbands/partners, and

abusing wife/partner (domestic violence). These crimes occur withinthe household; therefore, gender relations are important factors to beexamined in these case studies.Although this study focuses on women

offenders, women are often mentioned as victims, so it is important tounderstand the existing gender relations and biases in this case. The book

Hanreijihou shows certain parts of records of court cases. Basically,

they show the records of courtcases

that have outstandingjudgments orinvolve rare cases. They quote cases in detail, short of providing thenames of victims and offenders. The book covers all kinds of law, sofemale homicide cases against a husband or partner as a consequence ofdomestic violence is not the focused topic. Several constraints have been

placed upon approaching women criminal offenders in Japanese society.So much so, in fact, that their collective voice often goes unheard. Pro-

viding them with the opportunity to state their collective case is crucial

towards changing the current criminal justice system in Japan as well asa Japanese society, both of which have tolerated domestic violence.

Case 1

Judgment: 20 September 1979Court: The Osaka Supreme CourtSource: Hanreijihou No. 953, pp. 136-39The defendant lost sight in her left eye due to abuse from her husband,abuse which occurred on a daily basis. On the night of the crime, he tookher to an area overlooking the sea (which was deserted at the time) andabused her for approximately 20-30 minutes. Then, the husband told herto kill herselfand he tried to strangle her. The defendant became so over-come with fear that she lost her mind, and felt so much anger resultingfrom his daily abuse that she strangled him with a towel. She continued

strangling him even after he had stopped struggling. The trial admitted



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this as an act exceeding the legal definition of self-defense. However,regarding the events leading up to the crime as well as the domestic vio-

lence, there was reason to feel sympathetic towards her. Most of the factorsresulting in the crime were ones caused by the husband. Moreover, thedefendant went to the police station to confess everything right afterthe crime had occurred. In this homicide case, a sentence was passed thatreflected conditions deemed beyond the legal definition of self-defense.The sentence was eventually reduced, the second trial admitting the resultsfrom the first trial. The prosecutors appeal was denied, and the defendantwas exempted from punishment.Text analysis of the verdict: These texts reveal the criminal justicesystems image of women.

The defendant had been abused before their marriage. In addition, hehad asked for marriage to the defendant persistently in many strangeways, going so far as to cut his finger and deliver the severed memberto her. For this reason, she could not break up with him, although her

family disagreed with their marriage. (By the Judge: explaining the

process of their marriage)

As the first trial showed, the husband hadnt been employed at thetime and also had exhibited some abnormal personality traits. (By the

Judge: explaining the personality of the husband)

These texts elaborate the victims (husbands) personality more than

othercases.

Thedefendant is

explainedas not

being ableto

break upwith him because of his strange personality. This is her decision, but sheis imaged as a passive woman. The text stresses his abnormality as hisreason for committing domestic violence.Abnormalmen commit domestic

violence and ordinary men do not. Clearly, domestic violence as a crimeis not taken into account seriously enough in the criminal justice systemSocial opinion towards men who are not employed is strict. This is becauseof the gender division of labor. Men in the household are expected to

bring income to the family. So, the value of the victim (husband) wasconsidered very low in Japanese society. These texts idealize the conceptof the devotion ofwomen.

After they were married, they had two children. However, the husbandabused the defendant, did not work, and spent money on drinking and



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horse racing. She started working as a hostess in order to pay for the

family debts, caused primarily by the husband, and also to support the

family. (By the Judge: explaining the situation of the household)

This was a very serious case. It is reasonable to understand what the

prosecutor declared however, on the other hand, the background ofthe crime, her motivation for killing her husband, as well as the factthat she had lost the sight in her left eye, were all the results of veryserious violence towards her.At the same time the defendant had tried

to support her family as best she could. (By the Judge: explaining thehusbands personality)

Her behavior was not against the expectations implicit for wives within

society, such as supporting the family however she can. She could have

asked her husband to stop spending money on drinking and horse racing;however, this only emphasizes her patience and supportive personality.She devotes herself to her family. This is not against the ideals that society

expects of wives. Obviously her sentence is reduced because she devotesherself to her family even though she has been abused seriously. Hercharacteristics as a wife and mother are taken into account more import-

antly than the facts of domestic violence. She had lost sight in her left

eye, but society was not aware of the issue of domestic violence. Therewere no references to inaction on the part ofthe hospital in reporting thecase to the police.

Case 2

Judgment: 11 July 1997

Court: The Nagoya District CourtSource: Hanreijihou No. 1539, pp. 143-46In this case, the defendant was hit by a golf club in the back of the head.She stabbed the attacker, her male partner, in the neck using a petit knifewhile the victim was lying down with his eyes closed. The defendants

lawyer claimed that this crime fit the definition of legal self-defense.

However, the court rejected the lawyers claim and instead handed downa reduced sentence, although admitting that the crime had gone beyondself-defense. The defendant was excused from punishment.The primary consideration of this case was whether the crime involved

an urgent situation or not. The victim strangled the defendant with a shirtand then hit her on the back of the head with a golf club. However, after



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this he had stopped attacking her and lay down on his back. The defendantkilled the victim by stabbing him. The situation would not appear to have

been an urgent one. However, it can be assumed that on the day in question,were the murder not to have taken place, the victims violent behaviorwould have continued. For this reason, the case did in fact center on an

urgent situation. The actions of the defendant were enough to stop hisviolence at a certain time. However, because ofwhere she stabbed him-in the neck, an important part of the body-her actions in this case weredeemed to have gone beyond mere self-defense. Considering the relation-

ship between the defendant and the victim, the court was sympathetictowards her and the defendant was released from punishment.Text analysis of the verdict: The following texts stress the criminal

justice systems idealized image of women.

The defendant had experienced divorce twice and in addition, had ason from her first marriage. She worked for a coffee company in Nagoyaduring the daytime. She also began a part-time job at a bar/restaurantin approximatelyApril of 1987. (By the Judge: explaining the back-

ground of the defendant)

Divorce has not been largely accepted by Japanese society. It is espe-cially true for women because divorce goes against the image ofwomen

implicit in the criminal justice system. Therefore, this text shows that shehad some problems inherent in her personality.

The defendant was abused and had to visit a hospital a few times fortreatment of injuries. However she did not discuss this violence with

anyone because she thought her partner would abuse and/or threatenher relatives. (By the Judge: explaining the defendants abused

situation)

She tried to protect her family (relatives) before she attempted to solveher own problems, and that is why she kept quiet about the abuse. Suchsilence in family matters is socially valued. In addition, domestic violence

is something that should be kept secret and confined to the home asrevealing ones problems in public is considered shameful in Japanesesociety. To expose domestic violence is to shame the family in public.

These points should be considered and sympathy should be felt forthe defendant. Even if she had felt strong anger towards him due to



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the violence he had caused her, nobody could criticize her for having, these feelings.

Immediatelyafter

killinghim, she called 110

[police]and confessed as to what she had done. She had done nothing to deservethe abuse he put upon her repeatedly. (By the Judge: explaining her

feeling and situation right after committing homicide against her

husband)

Women are required to have coping strategies against domesticviolence.At the same time, the text stresses that women can be abused

for certain reasons. The text implies thatone can

deserve to be abused.The idea that the husband controls and disciplines the wife is implicit inthis text.

The victims family requested a lenient sentence for the defendant.The defendant had additionally not committed a single crime in her

lifetime leading up to this case. She had never done anything wrongbefore. The son, who had grown into an adult by this time, was able to

support her, so it was argued that she should be excused from pay-ing for her crime. (By the Judge: explaining what people around her

wanted)

Women are always controlled and supported by others. The idea thatwomen are supposed to be passive and not agents is implied in the text.There is an assumption that women criminal offenders do not need to becontrolled by the criminal justice system. Instead, they can be controlled

by male household members. In this case, the support from the defendantsson is considered important. Traditionally, a Japanese woman shouldfollow her husband and after his death, she must follow her son, because

the son becomes the head ofhousehold after the father. These texts show

the level of tolerance towards the mans personality.

The defendant lived a normal life up until 1988, when the victim started

to become violent towards her when he was under the influence of

alcohol.Also, he started complaining about trivial matters. The defend-ant tried to finish the relationship in the beginning of 1990. He refused,and in 1991, she became pregnant. However, she still wanted to break

up with her partner so she had an abortion. (By the Judge: elaboratingon the husbands abusive behavior)



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When he was drunk he abused the defendant without any reason

and continued this abuse. (By the Judge: elaborating on the husbands

abusive behavior)

This text portrays the husbands violence as having been influenced byalcohol. It shows a certain tolerance towards mens drinking culture andviolence against women. In addition, it assumes that violence is caused

by alcohol, and not by the patriarchal society that perpetuates the maledoctrine. It prevents domestic violence from being considered a seriouscrime. This text implies that domestic violence against women is accept-

able if there is a reason. Domestic violence againstwomen

within thehousehold has largely been accepted in Japanese society for a long time,and the judge clearly still has this idea. This text shows the wrong as-

sumptions of domestic violence.

Obviously, there was a power difference between the defendant andthe victim because the defendant was a woman while the victim was a

student of karate. If the defendant were to have a weapon while the

victim didnot,

and ifthe victim were not toattack, they

could

struggleequally. (By the Judge: explaining that this case is not a legal self-defense case)

The text focuses on the physical power differences between the abuserand the abused, and ignores the structural factors of domestic violence.Domestic violence is not only the problem of a physical power difference.It is a problem caused and perpetuated by uneven gender relations in a

patriarchalsociety, and so is socially

supportedand created. It focuses

on only one incident of domestic violence, so there is no understandingof domestic violence as a persistent and serious crime. Therefore, havinga weapon can be explained as an effective way for the defendant to protectherself. This text stresses that the justice system considers domestic vio-lence as happening only at the time in question. It ignores the fact thatdomestic violence happens repeatedly and over long periods of time.The victim ofdomestic violence feels a certain degree of stress and threatfrom the abuse. The psychological issues are ignored. These texts showthe biases inherent in understanding the facts of domestic violence.

Regarding the age, sex, physical strength, and condition of both thevictim and defendant, it is possible to consider that using the petitknife would fit the legal definition of self-defense. However in this



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It is also reasonable in terms of the purpose of punishment. Punish-ments are explained as disadvantaging criminals because of their criminal

activities.Asada (1996: p. 275) notes three purposes for punishment: (i)Prevention function: preventing crimes in society; (ii) Special preventionfunction: prevent the criminals from the repetition ofan offence; and (iii)The function that satisfies the victims and peoples feeling of retaliation.Conditions under which punishments have to be reduced are when the

person in question is ofunsound mind or is an accessory, and the reasonsfor reduced punishments include self-defense, self-surrender, and unsuc-cessful attempt. Therefore, light punishments for the defendants in thesecase studies are reasonabie.

The punishments have to be in accordance with the offenders re-

sponsibility. Therefore, the offenders age, personality, background, motiv-

ation, methods, result, harm on society, and behavior after the crime hasbeen committed are taken into account. The conditions where punishmentshave to be or can be reduced have all been mentioned. How are the

punishments in these case studies reduced, and how are the reasons ex-

plained ?It is

importantto

takea

lookat

the actual punishments thosedefendants received and the punishments that the defendants side claimed.The punishments that the prosecutors and the defendants side claimedas well as the actual punishment that the defendant received are shown in

Figure 3.

Figure 3Punishment Claims

Source: Hanreijihou 953/1539.

Accordingly, it is clear that the claim of legal self-defense was notadmitted in the DV situation. In addition, the background of the crimemust be taken into account, as should the fact that the defendants in the

cases received, according to the penal code, understandable punishments.But it is too premature to judge their punishments as light ones. The



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concept ofmurderous intent must also be examined. Murderous intent is

an important factor to be recognized when choosing an appropriate

punishment. In case 2, murderous intent is clearly recognized; the murder-ous intent is explained as one of protection, resulting from anger. In case 1,the existence of murderous intent is not examined. Instead, it is explainedthat while the defendants murderous intent can be assumed, it shouldnot be criticized.

The defendants exhibited murderous intent, so their crimes were not

accidental. They made a choice to commit homicide against their hus-bands.As legal self-defense is not admitted, the only other option is to

remain passive. Homicide against ones husband is obviously illegal, andtherefore the defendants can objectively be punished.When punishment is meted out, responsibility is a crucial point to

consider. If the defendant has no responsibility, she cannot be punished.Responsibility, according to the penal code, means that the people whocommit illegal activities can be punished. So if the defendants lack the

ability to take responsibility due to their age and/or mental condition,

punishments are either not given or are reduced. In addition, ifthe crimes

have a background worthy of social sympathy, punishments will also notbe given or will be reduced.

According to the Critical DiscourseAnalysis (Titscher, 2000), DV pre-valent in these case studies is not understood enough. But why are the

punishments reduced? Violence against women in the private sphere isnot usually seen by society, althoughDV is progressively being considereda crime. However, this does not mean that abused women who kill theirhusbands are socially accepted, because the DV they experienced is not

properly recognized as an illegal activity. Even if it were, women wouldstill not receive adequate support.

It has already been mentioned that the criminal justice system has acertain image of women, as well as biases about crimes. Ifcriminal offend-ers do not reflect this image and are considered through biases, they willnot receive adequate reduction of their punishments. Therefore, it is impos-sible to say that women are treated generously in any case. Women criminaloffenders are treated strictly in cases where the offenders go against the

image that the criminal justice system has ofthem.

Reducing or excusing from punishment implies that the person is not

required to take responsibility. Therefore, being treated generously impliesthat there is no responsibility or ability to take responsibility.As the lawyermentions, women are treated as objects that are controlled. This meansthat women are not considered people with agency (Morrissey, 2003). If



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the criminal justice system considers women criminal offenders objectswithout agency, it stands to reason that they will never be required to

take responsibility for their actions. When thinking about the offendersresponsibility in the case of homicide, it is crucial to consider whether

committing homicide was their choice or not. It might be said that theoffenders had no other choice when they were committing their crimes.In abusive situations, there are three ways for women to exercise their

agency: (i) Being abused as usual/taking no action against the abuser; (ii)a counter-attack against the abuser; and (iii) leaving their husbands.

Therefore, homicide against the abuser is a method of exercising agency.Can activities that stem from exercising agency be deemed a decision ora choice?

Murderous intent was recognized clearly in Case 1. The homicide thatwas committed with a certain degree ofmurderous intent can be calledher decision. This means the woman made a choice. This does not implythat DV, as a background of the crimes, should not be taken into account:it should. In addition, the punishments that the women criminal offendersreceived could have been reduced because of the background. However,are abused women only objects of sympathy?

Merely sympathizing with the women means ignoring their agency.The presence of DV should be looked at and used as a factor to reduce

their punishments. But it is also important that they be required to take

responsibility for homicide cases. Women offenders should be treated asindividuals exercising their agency.At the same time, the women offendersreceived varying punishments. This is because some women fit the imageor are made to fit the image that the criminal justice system has ofthem.Their character as a woman is more important than the actual crime orthe background of the crime.

Ideological Treatment of Women Criminal

Offenders and Domestic ~olence: Some Reflections

None of the cases consider DV against women properly even thoughsome case studies show a certain degree of sympathy to the abused (wife).DV is not considered a crime, but a small conflict between wife and

husband, a way for the husband to reduce stress from work. These notionsshow that there is no understanding about DV in the criminal justicesystem. The abused receive sympathy as a victim of violence. DV isconsidered an offense, but the social system is not called upon to take

responsibility. This is because society, as well as the criminal justice



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system, considers violence against women by the husband/partner as a

socially accepted form of behavior. Mens violence is not questioned at

all.Moreover, biases are present when considering DV. There are stereo-

typed ideas that violence only occurs within groups of uneducated people.The instigators of DV are not poorly educated people at all. They haveoften attained a certain degree of education. There is also an assumptionthat DV is a problem in low-income families. In truth, DV can happen in

any household. In addition, the abusers are considered to be mentallydisordered men and, therefore, DV is not considered a crime that could

potentially occur in any household. Due to these misconceptions, DV isneglected.According to the case studies, it can be seen that the criminal justice

system has a fixed image of women as good wife and good mother.Good mothers and good wives symbolize the idea of femininity. Thismeans that the women who follow their husbands, devote themselves totheir families, and sacrifice their lives for their families are valued in

Japanese society. Therefore, women are supposed to be passive and ob-

jects without agency. Women who fit the image that the system has ofthem receive sympathy, while those who go against this image do not. Inthe criminal justice system, only the facts and backgrounds of crimesshould be taken into account for justice. For women criminal offenders,however, this biased image is taken into account.

Because of this, it is possible to conclude that the criminal justice systemconsiders the crime itself as a masculine project, and is therefore lenienton women criminal offenders. In a patriarchal society, men are dominant

and women are subordinated. In this social system, women are requiredto devote and sacrifice themselves to the family. But even though these

images are recognized in each case study, the value of and situation aroundwomen in Japanese society has been changing.

Simply comparing the situation ofwomen between the oldest case andthe newest one (1959 and 1993 respectively) shows that women have

progressively had a better situation in terms of more opportunity for social

participation, education, and decision making in their own lives.Along

with the altered situation, the ideology regarding women has been chan-ging as well. However, the images of women as good mothers and goodwives are still recognized in all cases. In addition, the increase in womenssocial participation does not imply changing gender roles within thehousehold. Women are still required to be good mothers and good wivesat home.



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If one only looks at the punishments, many women criminal offendersare advantaged because they are less prosecuted and receive lighter punish-ments. The violent agency of women criminal offenders is ignored(Morrissey, 2003). Women offenders are treated as passive, vulnerable,and objects that are under the control ofmen. The criminal justice systemdoes not understandwomen criminal offenders after all. Criminal activities

are considered masculine in nature, and therefore the consideration of

crimes does not translate well when they have been committed by women.

Clearly, crimes that are committed by women are considered throughbiases and wrong assumptions, and are misunderstood.

By being considered people without agency, women criminal offendersare categorized as legally disabled. Therefore, they are not required totake responsibility for their crimes. The case studies show that womencriminal offenders are ideologically treated in the criminal justice systemand DV is not considered a crime. Both of these facts are biases when the

women offenders in these case studies are considered.As the lawyerargues, the punishments of the women offenders in the case studies are

quite light compared to the punishments normally given in homicide cases.

It is important to remember that homicide also violates human rights.The fact ofDV as a background of homicide cases should be taken intoaccount.At the same time, care must be taken to ensure that the value of

human rights and the value of life are the same between the abused andthe abuser. The human rights of the victims in homicide cases (the abuserin the DV as a background) should be taken into greater account.At thesame time, DV must be considered a crime in the criminal justice system.

NOTE

1. In Japan, the most common divorce is by mutual agreement. In cases where couplescannot agree on the terms for their separation, and hence cannot file for a divorce bymutual agreement, there are basically three options open to them: (i) divorce bymediation in a family court; (ii) divorce by judgment of the family court; and (iii)divorce by judgment of a district court.

REFERENCES

Asada, Kazushige, Uchida, Hirofumi, Ueda, Kan, and Matsumiya, Takashi. (1996)Current Penal Code, Yuhikaku, Tokyo, Japan.

Gender Equality Bureau, The Cabinet Office. (2003) Haigusha karano bouryoku nikansuru chousa, (Research on Domestic Violence), Tokyo, Japan.



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The Cabinet Office. (2003) White Paper on Gender Equality, The Cabinet Office, Tokyo,Japan.

Hanreijihousha. (1975-2001) HanreijihouNo. 935, No. 1539, Hanreijihousha, Tokyo.

Iwai, Nobuko. (2000) House of Representative, Diet Discussion Paper, Ministry of Justice,

Tokyo, Japan.Japan-Korea Joint Research Project for the Development of the Social System to

Prevent ViolenceAgainst Women in the FamilyPossibilities inAsia. (2001)

Symposium Handouts 4, Tokyo, Japan.Kakuta, Yukiko. (1994) Violence from Husband/Partner: Women, Violence and Human

Rights, Gakuyousha, Tokyo, Japan.Miyazono, Hisae. (1994) Feminist Criminology, Hougakushinpou No. 100, Tokyo, Japan.. (2000) The Criminal Justice System and Gender in Japan, Journal of the

National Women Education Center of Japan 4: 53-64.Morrissey, Belinda. (2003) When Women Kill: Questions of Agency and Subjectivity,

Routledge, London.

Pollak, Otto. (1950) The Criminality of Women, University of Pennsylvania Press,

Philadelphia.

Sato, Noriiko. (1985) The Realities of Female Crimes, Houritsunohiroba, January,

Gyousei, Tokyo, Japan.Titscher, Mayer. (2000) Methods of Text and DiscourseAnalysis, Sage Publications,

California.

Tsujimura, Miyoko. (1997) Gender Dominated Law Structure and Historical Develop-ment, Gender and Law: 3-35.

Watanabe, Yuko. (1994) Women, Violence andHuman Rights, Gakuyosha, Tokyo, Japan.

Documents

255.fullDomestic Violence Victims as Homicide Offenders: A Study of Gender Ideology in the Japanese Criminal Justice System