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  1. Our Strategic Alternative

Our Strategic Alternative

Specific laws addressing specific harms and the intermediate approach of HRN, due to their focus on harms whose victims are specified individuals, can be constructed as criminal laws. Still, they cannot address the rest of pornography’s harms, especially its consumption and social harms. Nor do these laws have any intent to do so. Therefore, we need to envisage a new comprehensive legal approach that can bestow each approach’s advantages and compensate for deficiencies.

This new comprehensive law would not displace specific laws or HRN’s legal proposal but is envisaged as complementing them. It will be difficult to enact comprehensive legislation because there will be strong resistance from dominant currents of Japanese society, and, of course, inevitably, we would come up against freedom of expression arguments, and this would cause long delays in its enactment, and, in fact, would likely prevent its enactment altogether. We must learn the lessons of the failure of the McKinnon-Dworkin Ordinance. While we campaign to establish various specific laws (such as the Spy-cam Filming Prevention Law) and the legal proposal suggested by HRN centering on coerced filming, at the same time we must envisage and construct complementary legislation in a comprehensive way that addresses other forms of pornography’s harms (particularly its consumption harms and social harms).

Furthermore, this law would not displace existing criminal regulations against obscene materials. While we agree with MacKinnon’s criticism of the obscenity approach, we believe that criminal obscenity regulations are far from meaningless and instead can be partially applied to the environmental harm of pornography that comprises social harms. We can still apply regulations against obscene materials by converting their application criterion from moralism to human rights (and precisely the person’s dignity and equality). Legal obscenity breaches are recognized in Japan if materials show genitals unblurred. Genitals are obviously the most private parts of the human body and are central to individual sexual dignity. From a human rights perspective, it is right that their explicit depiction for the purpose of sexual stimulation, and the public release and distribution of such materials, is criminally regulated, irrespective of the consent of individuals to such activity.

We shall call our proposal for supplementary comprehensive legislation the Pornography’s Harms Prevention Law. But we need not conceive of this law as a standalone piece of legislation. The law can be enacted as a cluster of relevant regulations or as part of more comprehensive legislation such as provisions within laws against sexual violence. Our proposed legal approach would establish both criminal and civil avenues for redress. Harms that are not covered or that are difficultto cover in specific laws, or the legal suggestion of HRN; that is, harms relating to pornography’s consumption, social impact, and existence, should be given civil avenues of redress, while criminally actionable harms should be afforded regulatory and legislative options. Instead of the explicitly feminist subordination of women definition, it is more realistic to make the legal definition of pornography one which invokes the definition of child pornography in Japan’s existing Child Pornography Prohibition Law, in which poses and acts “relating to sex or similar to sex” or with “clothing removed fully or partly,” and “exciting or stimulating sexual desire,” or “inordinately highlighting or exposing sexual parts” comprise breaches.

To be sure, it would be ideal to legally define pornography as a systematic practice of sex discrimination and subordination of women (in this case, pornography is factually defined as something that comprises harm to women) and to comprehensively regulate the harms arising from it. But, as already mentioned, this approach would be challenging in Japan. Even in the United States, this effort, after all, failed. So, we believe that it would be better to separate the definition of pornography from its harms and maintain the appearance of dealing with pornography’s harms instead of pornography itself. This is not only because it would become easier to pass in Japan’s legislature, but also because, even if the material is not something subordinating of women (for example, footage of sex between a man and a woman who love each other), the non-consensual distribution of it through the Internet nonetheless produces serious harms.

Our proposed law would address consumption and social harms arising from pornography’s widespread circulation and would incorporate different legal responses to these harms according to their type. Regarding consumption harms, since forcing pornography on someone at home or at work (as per No. (1) in our classification scheme above of consumption harms) is a kind of domestic violence or sexual harassment at work, naturally, we should address these harms through criminal punishment. In relation to sexual violence incited by certain kinds of pornography (especially violent materials), which comprises consumption harm No. 2 in our classification scheme above, just as in the MacKinnon-Dworkin Ordinance, victims would be able to sue producers of the materials. Creating this avenue of redress would not be an unrealistic measure: similar claims for damages are brought against tobacco companies for producing products that have harmed an individual’s health.

Next, in respect of social harms, for environmental harms of pornography (item No. (1) of our classification scheme above of social harms) we should use a means of social enlightenment activity, administrative guidance, and recommendation by government. As for declines in women’s status brought about by pornography’s pervasiveness (which is item No. (2) in our classification scheme above on social harms), we need different strategies according to the content of the pornography under consideration.

On the one hand, in the case of live-filmed pornography, given the HRN understanding that it has “negative effects on the mental and physical safety and health” of cast members, and potentially injures “her or his dignity,” the production, as well as the distribution of such materials, should be treated as a criminal matter. Also, even when the materials comprise non-live-filmed pornography (such as paintings, animation, and CG), it is possibly enough to treat the distribution and publication of such pornographic content as criminal, including materials that imitate or promote crimes such as rape, molestation, detention or public indecency, or materials in relation to which, if the acts they depict were done to a real person, would “have certain negative effects” on a person, or would “hurt her or his dignity.” We can classify these types of non-live-filmed pornography as “violent pornography.” Given that, in the UK, pornography in which cruel and brutal acts (for example, bestiality and necrophilism) are already prohibited, this is not an unrealistic proposal.

On the other hand, even when not “violent” in the sense mentioned above, we should make some kinds of pornography civilly actionable as the MacKinnonDworkin Ordinance does, including materials that reduce women to a sexually subordinate existence, or present women as mere sexual objects, or describe women in a way that reduces them to their body parts, or shows an adult woman as if she is a child, etc. We can refer to these kinds of pornography as subordinate pornography. The MacKinnon-Dworkin Ordinance defined the distribution of both these mentioned above— “violent pornography” and “subordinate pornography”—together as “trafficking” to make them civilly actionable. Still, we believe they should be separately addressed: the former criminally, and the latter civilly. Our proposed approach would address “harms of circulation”(those not yet addressed) and “harms of pornography’s existence.” In other words, it would ban the private possession of materials that are subject to a ban, as well as the hosting or Internet display of such materials, which have been judged to engender harms in their production or their circulation, or which were used as a means of intimidation in private relations. Alternatively, it would be possible to improve upon the specific laws and legal recommendations of HRN towards prohibiting these materials.

Moreover, in our proposal, legal provisions would be enacted to confiscate all revenues earned through the distribution or sale of pornography produced through the coercion or intimidation of victims or through spy-cam filming. These proceeds of crime would be re-distributed to victims. In South Korea, a 2020 criminal code amendment saw the introduction of legal powers to confiscate revenues earned through the production of deepfake pornography. These powers should be exercised for other victims of pornography production. If such provisions were introduced in Japan, the country’s pornography industry would sustain substantial economic damage, and some degree of financial compensation could be given to victims.

Thus, we have discussed five points arising in relation to our new legislative vision. To what extent the Pornography’s Harms Prevention Law would cover pornography’s harms would depend on levels of development of human rights awareness and the women’s movement. If these levels are low, the range of “violent pornography” and “subordinate pornography” that could be regulated under the new law would be interpreted narrowly. But, on the other hand, if human rights awareness in society was developed, and if the strength of the women’s movement was evident, the law would be able to cover almost the full range of pornography defined in the MacKinnon-Dworkin ordinance. We advocate a strategic, step-by-step approach that starts by addressing pornography’s particularly severe harms and then widens its range of regulation against the broader spectrum of pornography’s harms, and finally encroaches upon pornography itself (pornography’s harms include, after all, pornography itself). By adopting this legal strategy, on the one hand we can address the most serious and vicious forms of pornography’s harms right now, and, on the other hand, with the future development of social consciousness and growth in the women’s movement, we will finally be able to address pornography as a systematic practice of sex discrimination. This is an approach realistic in practice and justifiable in principle.

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