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Obscenity and Article 175 of the Japanese Penal Code: A Short Introduction to Japanese Censorship

Since the end of the Second World War Article 175 of the Japanese Penal Code, known as the obscenity law (more specifically Waisetsu Butsu Hanpu To / Distribution of Obscene Objects), has represented the only official restriction on freedom of expression, which is nevertheless guaranteed by Article 21 of the 1947 Constitution. Paragraph 2 of this article reads how "no censorship shall be maintained" (1). The term obscenity (in Japanese waisetsu) first appeared in the Article 259 of the 1880 Penal Code. However, it is Article 175 which remains as the main legal base to regulate obscenity. If there is a law in Japan that regulates what it can be read in newspapers and other kind of publications and be seen in paintings, manga and films that is, without any doubt, Article 175 of the Japanese Penal Code. This, changed several times since its implementation in 1907, stipulates that "a person who distributes, sells or displays in public an obscene document, drawing or other objects shall be punished by imprisonment with work for not more than 2 years, a fine of not more 2,500,000 yen or a petty fine. The same shall apply to a person who possesses the same with the purpose of sale (japaneselawtranslation.go.jp." (2).

Nevertheless, there is not a clause in this article, which defines the term "obscenity" and "neither government administrators nor the courts were legally compelled to specify what constituted "obscene material" (3). It is little wonder that multiple interpretations have been given to this article with regards to its application. If we consider visual material such as manga or cinema, the law has interpreted the term obscenity in this article as the exposure of pubic hair, the adult genitals and the sexual act. Thus, if this should happen the exposed parts in any kind of visual material should be hidden with what in Japan is called bokashi (blurring or fogging) or with a digital mosaic. This extremely vague definition of obscenity has created numerous inconsistencies in court decisions, which are central to the current debate on freedom of speech in Japan. (4)

Confiscation of LADY CHATTERLEY'S LOVER copies

The basis for the current interpretation of the term obscenity was developed in the fifties in response to the translation and distribution of the novel Lady Chatterley's Lover by the British writer D.H. Lawrence. In 1950, the editor Kyujiro Koyama and the translator Sei Ito were accused of obscenity for the translation, publication and distribution of this novel. The prosecutor insisted that twelve passages in the book were obscene to the general public and therefore its public viewing constituted a crime under Article 175 of the Penal Code. On the other hand, the accused maintained that the interpretation of the Penal Code given by the prosecutor was flawed and unconstitutional. After a series of disputes at the Tokyo High Court, the case was finally taken to the Supreme Court in 1957. On 13 March of that year, the Supreme Court rejected any appeals made by the accused and backed the accusations made by the prosecution that the twelve passages at issue infected the whole book with obscenity arguing that "the description of the sex acts contained therein at twelve passages, as pointed out by the prosecutor, is all too bold, detailed, and realistic" (5).

When clarifying what was meant by the expression obscene writing, the Supreme Court followed the principles set up by the Court of Cassation when had explained that the term obscene "refers to a writing, picture, and everything else which tends to stimulate and excite sexual desire or satisfy the same; and consequently, to be an obscene matter, it must be such that it causes man to engender feeling of shame and loathsomeness", and the Supreme Court which held that obscene "refers to that which unnecessarily excites or stimulates sexual desire, injures the normal sense of embarrassment commonly present in a normal ordinary person, and runs counter to the good moral concept pertaining to sexual matters." (6). Translator and editor were forced to pay a fine and the publication of the book was prohibited.

Thus, as James R. Alexander points out, the foundation for the current Japanese judicial doctrine of obscenity was developed during this Supreme Court ruling of Lady Chatterley's Lover's translation and its ratification of the interpretations of the term obscene given by previous rulings by the Court of Cassation and the Supreme Court, and how the Article 175 of the Penal Code should subsequently be applied.

Gradually the law has accepted that the artistic merit of a work is a mitigating factor to determine if that particular work is obscene and, therefore, justify its censorship (7). Between 1959 and 1960 an abridged translation of Marquis de Sade "L'Historie de Juliette; ou Les Prosperites du Vice" appeared published in two volumes. This translation was done by Tatsuhiko Shibusawa, who along with the editor Kyoji Ishii were indicted in 1960 for possession and selling of obscene literature. On 16 October 1962 the Tokyo District Court considered that 14 passages of the volume "The Travels of Juliette "were offensive and violated the public decorum , yet translator and editor were acquitted on the grounds that these passages "were too brutal and 'unreal'" (8) and "did not (effectively)appeal to sexual passion and therefore could not be considered obscene under Article 175". (9, 10).

However, on 21 November 1963 the Tokyo High Court disagreed with the decision taken by the Tokyo District Court and found the accused guilty of obscenity. On 15 October 1969, the Supreme Court upheld this ruling. With this decision the jury stated more clearly than in Lady Chatterley's Lover's case that "obscene sections render an entire work obscene" (11) and, more importantly, in applying for the first time the articles 12 and 13 of the Constitution on Public Welfare Standard to limit academic freedom guaranteed in article 21 of the Constitution. Even though, the accused were found guilty, the Supreme Court clarified that there might be cases when the artistic and intellectual quality of a piece of work could reduce the sexual arousing of obscene sections to a degree where it might not be penalized by article 175 of the Penal Code and exonerate the whole work from all charges of obscenity.(12).

L'HISTORIE DE JULIETTE; OU LES PROSPERITES DU VICE translated into Japanese by Tatsuhiko Shibusawa

Prior to Article 175 of the Japanese Penal Code, the reforms carried out by the Japanese government after the Meiji Restoration also reached the realms of popular entertainment, which faced a harsh crackdown on its representation of obscenity and cruelty. As Yoshimoto explains "the sole interest of the government was to contain the negative impact of frivolous and vulgar entertainment on the people, and if possible, to use it as an ideological instrument for legitimating state power"(13).

On 21st April, 1872 the Kyobusho (Ministry of Religious Instruction) was established and immediately issued a directive, consisting of three prescriptions, to control popular fiction and entertainment. These were (1) respect for the gods and love of country should be embodied; (2) the ways of Heaven, Earth, and Man are to be elucidated; (3) obedience to the emperor and his will should be inculcated (14). Soon the owners and playwrights of three Kabuki theaters were summoned to the prefectural office of Tokyo and required to revise Kabuki scenarios so they could become morally acceptable for aristocratic and foreign audiences.

Thus the Meiji government initiated a campaign to eradicate undesirable elements of obscenity and cruelty featured in many Kabuki plays. However, as Yoshimoto notes "Kabuki enjoyed enormous popularity precisely because it was a product of popular fantasy, to which obscenity and cruelty integrally belonged" (15). Interestingly enough Kabuki, now viewed as Japan's national theater and an example of her high culture, was first seen by the Meiji government with pure disdain as it did not serve the national interests. The government's resolute aim to catch up with the West, not just technologically or military, but also culturally, needed of Kabuki to be purified from indecent stories so it could be elevated to the status of high art. Furthermore, the replacement of fiction and fantasy with historical facts in Kabuki plays was used as an educational tool by the new government to enlighten people as subjects of the imperial state.

With regards to cinema in Japan, the first recorded case of censorship in the country took place on 21th November 1897 in the prefecture of Tochigi, when the local police banned the projection of Vitascope's BUTTERFLY DANCE, promoted in Japan as BEIKOKU JOYU FULLER-JO KOCHO NO MAI (Butterfly Dance by the American Actress (Loie) Fuller) (16). However Aaron Gerow, in his translation of the article by Makino Mamoru On the Conditions of Film Censorship in Japan before Its Systematization, cites ANNABELLE'S (WHITFORD) BUTTERFLY DANCE as the film banned for reasons of public morality(17). The first Japanese film to be banned was SHUNPUKAKU (Palace of the Spring Breeze) when it was playing at the Dai-ni Fukuho-kan, for the reason that it dealt with adultery. SHUNPUKAKU had premiered at the Asakusa Kinryukan on 11th April 1912.

NIKUTAI NO ICHIBA (Market of Flesh) is considered the first film to be accused of obscenity (as well as the first pinku-eiga) since the end of World War II. Directed by the so-called father of Japanese erotic cinema, Satoru Kobayashi, NIKUTAI NO ICHIBA opened in cinemas of the Tokyo area on 27 February 1962. As Domening explains, the film did not cause inmediate controversy on its release as stated in many sources, but more than two weeks later due to the sensational media coverage given to the film. On March 15 the Tokyo Police Board indicted Market of Flesh for violating Article 174 (kozen waisetsu/public indecency) of the Criminal Code (18). This article reads as follows "a person who commits an indecent act in public shall be punished by imprisonment with work for not more than 6 months, a fine of not more than 300,000 yen, misdemeanor imprisionment without work of a petty fine (19). The police authorities demanded cuts of several scenes depicting sex and violence amounting to a total length of 1,000 feet, or about 11 minutes, before it could be re-released. The media exposure given to its trouble with the law made NIKUTAI NO ICHIBA an unexpected success. It ran for four months in the city of Nagoya after its opening in May 1962. Only the first 20 minutes of the film (of a total of approximately 56 minutes) survived and are stored at the National Film Center in Tokyo. None of the censored scenes remain.

KUROI YUKI
Tetsuji Takechi

On the other hand, the first Japanese film to be prosecuted on charges of obscenity was KUROI YUKI (Black Snow) directed by Tetsuji Takechi and produced by Nikkatsu, which premiered on 19 June 1965. The offices of Nikkatsu and Takechi's own home were raided by the Tokyo Metropolitan Police Department and all the copies of the film were confiscated. KUROI YUKI represented another important milestone in the history of Japanese censorship and of article 175 as the film had previously been approved by EIRIN (abbreviation of Eirin Kanri Iinkai or Administration Commission of Motion Picture Code of Ethics, an independent and non-governmental committee of censorship elected and regulated by own members of the Japanese film industry). With a clear anti-American subject matter, KUROI YUKI was accused of racism and ultra-nationalism by several film critics. One of the scenes in dispute shows a young woman running naked along the fence of the airbase in Yokota. This scene had been shot in one long take of five minutes. Takechi claimed on his defence, perhaps with de Sade's case in mind, his use of long takes for aesthetic and artistic reasons.

Takechi carried on saying that a montage of close-ups and fast cuts, which would have helped to avoid showing the pubic hair, did not fit with the supposedly traditional model of Japanese aesthetics. The case attracted the attention of the public media due to the support given to the director by well-known Japanese artists with such different political ideas as Yukio Mishima, Nagisa Oshima or Kobo Abe among others. These defended the artistic value of the film as well as the freedom of expression of the artist. Tetsuji Takechi was finally found innocent and cleared of all charges of obscenity on 17 September 1967. (20)

Even though, BLACK SNOW created a great amount of controversy and media coverage, many film critics still regard Nagisa Oshima's AI NO CORRIDA as the most representative film that has faced the law accused of obscenity under article 175. But before discussing this issue we cannot forget mentioning four roman-porno films, produced by Nikkatsu, and charged with obscenity by the Tokyo Metropolitan Police Department in 1972 but found not guilty in 1980. With reference to these four films we need to emphasize two important points. First, and as with BLACK SNOW's case, these four films had been given the approval of Eirin to be released without being subjected to any kind of censorship. Secondly, and probably more interesting, is that for the first time in the history of Eirin three of its members were taken to court accused of obscenity.

On 20 November 1971, Nikkatsu had released its first pinku-eiga DANCHIZUMA HIRUSAGARI NO JOJI ( Apartment Wife: Mid-Afternoon Love Affair , also known as From Three to Sex) directed by Shogoro Nishimura. Not long time after, on January 1972 to be precise, the Tokyo Metropolitan Police Department raided the studios of Nikkatsu and the offices of Eirin and confiscated all the copies from three pinku eiga: KOI NO KARIUDO: LOVE HUNTER directed by Seiichiro Yamaguchi, OL NIKKI: MESUNEKO NO NIOI (Diary of a Female Office Worker: a She-Cat's Smell) directed by Katsuhiko Fuji and JOKOSEI GEISHA (The Female High School Student of Geisha) directed by Kaoru Umezawa. Three months later, another film AI NO NUKUMORI (Love's Warmth), directed by Yukihiko Kondo was also confiscated and accused of obscenity by the police.

KOI NO KARIUDO: LOVE HUNTER
Seiichiro Yamaguchi

Funnily enough, the actress Mari Tanaka, protagonist in AI NO NUKUMORI and KOI NO KARIUDO: LOVE HUNTER, became a kind of heroine for various anti-establishment groups as those two films had been censored by the police force in a space of three months (21).

A total number of nine people, wich included three directors and three members of Eirin, were tried for obscenity but finally acquitted in July 1980. In its first ruling in 1978, the Tokyo District Court had declared that even though the films contained obscene (waisetsu) elements, it did not consider the film as whole as such. In its second ruling, made in July 1980, the Tokyo District Court repeated that even though obscene elements were found in all these films, their creators had not intended to break the law.

While waiting for the result of his case, director Yamaguchi Seiichiro shot another erotic film titled KOI NO KARIUDO: YOKUBO (Love Hunter: Desire), where the protagonist, a student working as a stripper, is arrested by the Tokyo Metropolitan Police Department with charges of obscenity. On the other hand, Tatsumi Kamishiro, one of the most well-respected directors of the pinku-eiga genre, also had his problems with the censors in 29 May 1973 when the showing of his film ONNAJIGOKU NO MORI WA NURETTA (A Devilish Woman's Wet Forest) was cancelled by the police, who asked Eirin to review the film one more time. After these four examples and until this day no other film has been taken to court charged with obscenity.

However, and without any doubt, the most famous case was Nagisa Oshima's AI NO CORRIDA (In the Realm of the Senses. Oddly enough, the film itself was never taken to court but a book containing essays written by the director, the film script and twelve photographs accompanying the text. Even though, shot clandestinely in Japan with a crew of mainly Japanese, AI NO CORRIDA is considered a French production. The film stock had been imported from France and the negative had been sent to a French laboratory for its developing and editing.

AI NO CORRIDA
Nagisa Oshima

Its world premiere took place at the Director's Fortnight section of the 1976 Cannes Film Festival. On 26 September of that year it was released in commercial cinemas of Paris. Meanwhile, the book above mentioned was being published in Japan and charged with obscenity at the end of July, even before the film had been imported into Japan. During the trial, Oshima admitted that the book had only been a scapegoat for the possible indictment of the film. The distribution of the film in Japan was blocked initially by customs at international airports (22). Only after a third of the original film had been altered by the censors it was allowed to be released in Japan at the end of 1976. To this day the original version of AI NO CORRIDA has never been shown in cinemas or released on video or DVD in Japan. A version released in 2000 titled AI NO CORRIDA 2000 was shown uncut, with five minutes of footage restored that had been censored in its initial release, but still contained numerous digital bokashi or masking in many scenes (23).

As mentioned above the book charged with obscenity by the National Police Agency included twelve production stills that were considered obscene for "depicting poses of male-female intercourse and sex play" (24) and nine passages "in which male-female sexual intercourse or sex play is described frankly"(25).

Oshima asked the court to explain him the philosophical, political, legal, conceptual and visual standards in which it based its accusation of the production stills being obscene. Oshima also demanded from the court to clarify the terms "intercourse" and "sexual play" and the cases in which "depicting poses of male-female intercourse and sex play" could not be considered obscene. Likewise, Oshima demanded the court for recommendations on how much he should recut the photographs so as not to be considered obscene. In his own defence, Oshima explained that the production stills contained in the book were not of his own authorship but of a professional photographer. Furthermore, the negatives of those photographs were not his own property, but belonged to the production company Argos Films. In the same way, Oshima requested to the court to explain him the standards for considering nine passages of the script obscene. The Supreme Court took no notice of these demands and failed to clarify any points related to the meaning of the term obscenity. Nevertheless, Oshima was acquitted of any charges in 1982. Previous to this court decision, in 1979 the publisher San'Ichishobo had also been found non-guilty of publishing obscene literature.

AI NO CORRIDA
What Japan cannot see

In general, foreign films and publications have always been given a more lenient treatment by the Japanese censors, maybe due to the pressure exerted by foreign artists, directors, editors and even governments. Thus, the verdict given by the Supreme Court during the Sade Case in which it clarified that there might be cases when the artistic and intellectual quality of a piece of work could reduce the sexual arousing of obscene sections to a degree where it might not be penalized by article 175 of the Penal Code, was the reason by which Eirin gave the green light to a scene with frontal nudity in the German film about the Spanish painter Goya GOYA-ODER DER ARGE WEG DER ERKENNTNIS, released in Japan in September 1972. In this particular scene we see in full frontal nudity the model used by Goya to paint his masterpiece The Naked Maja(26). Years later, in June 1985, during the first Tokyo International Film Festival, another three foreign films that included full frontal nudity were shown without any bokashi. The first film to get this honour was Michael Bradford's 1984 based on the novel by George Orwell. The other two were KISS OF THE SPIDER WOMAN by Hector Babenco and THE COMPANY OF WOLVES by Neil Jordan. In this case, the directors Michael Bradford and Hector Babenco had threatened to withdraw their films from the festival even if a single frame was ever censored from their films (27). Due to the pressure put by the directors, the scale and magnitude of the event in its very first year and the bad publicity that a ban on these films could bring, these films were all projected without any kind of censorship. However, the Japanese authorities made it clear that their decision to let these three films be shown uncensored was just an exception and were these films to be distributed commercially they had to conform to local laws. In the end, these three were only exhibited in film festivals and their viewing in commercial cinemas or their distribution in video were not materialized. Likewise, two years later THE LAST OF ENGLAND by Derek Jarman would be exhibited unaltered in the second Tokyo International Film Festival, but when the film distributor company Uplink tried to release it in cinemas was forced to have bokashi added to scenes in the film depicting male genitalia (28).

In 1987 gay activist and editor of the magazine The Gay, Ken Togo got arrested by custom at Haneda Aiport on charges of obscenity. Among his luggage gay magazines and videos that he had bought on his trip to San Francisco were found. Customs claimed that material was intended for redistribution, therefore breaking the Article 175. After losing his first trial, Togo took his case to the Tokyo High Court, which overruled the first decision in 1995, arguing that the magazines and videos were for personal use. This landmark decision suggested that now importing obscene goods for private possession had been allowed. However, customs, not happy with the outcome, appealed to the Supreme Court and this, once again, reversed the previous decision in 1997 and asked Togo to pay the fine and cost of the trials (29).

SANTA FE

From mid-80s the restrictions on article 175 were gradually being relaxed culminating in the publication in 1991 of a photo book with nudes of actress Kanako Higuchi titled Water Fruit, where, and for the first time in a publication, the pubic hair was shown. The photographs were taken by Kishin Shinoyama, one of the most famous photographers at that time. Even more successful was another photo book by the same artist published in November of that year, where the famous actress, singer and model Rie Miyazawa (TASOGARE SEIBEI, Twilight Samurai) appeared naked and showing her pubic hair in a couple of portraits. The title of the book was Santa Fe and it has become the biggest best-seller of this kind of publication. The release of these two uncensored photo books sparked a so-called hair nude boom in Japan. From that time on the exposure of pubic hair stopped being one of the standards by which article 175 on obscenity would be applied. The exposure of pubic hair in different publications was gradually being allowed provided that the genitals were not shown.

WATER FRUIT

Considering films again, it would be in May 1992 when a film containing numerous scenes of full frontal nudity would be shown for the first time uncut and without bokashi in commercial cinemas and later released in video. This was the French film LA BELLE NOISEUSE directed by Jacques Rivette, which had won the Grand Prix du Jury at Cannes in 1991 and had been shown at the previous year's 4th Tokyo International Film Festival. In this instance, Eirin, as it had done with GOYA-ODER DER ARGE WEG DER ERKENNTNIS two decades earlier, left untouched the nude scenes featuring Marianne (Emmanuelle Beart) modelling for the famous reclusive painter Frenhofer (Michel Piccoli). However, a year later THE CRYING GAME (released in Japan in June 1993) would be less lucky as a bokashi would spoil its most crucial scene, when Dil (Jaye Davidson) reveals herself as a male transvestite to his lover, ex-IRA member Fergus (Chris Rea). Funnily enough THE CRYING GAME had been partially financed by the Japanese company Nippon Film Development and Finance. On the other hand, ORLANDO, released in September that year, became the first film to play in the cinemas untouched by Custom's censors, even though it contained a scene in which Orlando (Tilda Swinton) wakes up in 1750 as a woman and contemplates her body change fully naked in front of a mirror. According to Ulms, since the release of ORLANDO, the depiction of pubic hair lost ist importance for Customs, even though it remained a bit issue for Eirin (30).

AI NO SHINSEKAI
(Banmei Takahashi, 1994)

Regarding domestic cinema, AI NO SHINSEKAI (New Love in Tokyo) by filmmaker Banmei Takahashi was released on 17 December 1994 and featured copious naked scenes, among them a full frontal female nudity scene at the beach (see caption) near the end of the film with actresses Sawa Suzuki and Reiko Kataoka. This became Japanese cinema's first bokashi-free hair nude scene in a film released commercially in the country. The script partly based on a book of portraits of Tokyo prostitutes title Ai no Shinsekai/La Nouveau Monde Amoureux by famous photographer Nobuyoshi Araki could have been a factor for not censoring this film. In a clear reference to the origins of the story, Araki himself turns out at the beginning of the film, though his face is always covered by his camera, conducting a photo shoot with actress Sawa Sukuki, who plays an S&M dominatrix and an aspiring actress in a amateur theatre company. The impressive cast included among other actors future directors Matsuo Suzuki and Kudo Kankuro who play the director and a member of the theatre company. For her role as Rei, Sawa Sukuki was awarded the Blue Ribbon Best New Actress Award, Kinema Junpo Award for Best New Actress and Mainichi Eiga Awards Grand Prix Rookie of the Year award. Japan's oldest film magazine, Kinema Junpo, selected AI NO SHINSEKAI as the 9th best film of 1994. Again, a non-pixelated DVD version of the film was released on 27 May 2011.

Soon other films depicting female actors in full-frontal scenes were passed uncut such as Kaori Fuji in SWALLOWTAIL (Shinji Iwai, 1996), Hiroko Shimada in MIDORI (Ryuichi Hiroki, 1996) or Kaori Saeki and Yuna Natsuo in KOSHOKU NO YUME (Masahiro Nakata, 1997) (31). However, other films like TOTAL ECLIPSE (Agnieszka Holland, 1995) BEYOND THE CLOUDS (Michelangelo Antonioni and Wim Wenders, 1995) and THE PILLOW BOOK (Peter Greenaway, 1996), still suffered at the hands of Eirin. Nevertheless, even though Customs had become more lenient on allowing nudity and pubic hair being shown in films, still considered obscene the depiction of the male sexual organ as the censorship of THE CRYING GAME and latter the documentary MOEDER DAO, DE SCHILDPADGELIJKENDE showed. MOEDER DAO, DE SCHILDPADGELIJKENDE which dealt with Dutch colonialism in Indonesia was ordered by Japanese customs authorities that a 12-second scene be cut before the film could have been shown at the Yamagata International Film Festival in October 1997. MOEDER DAO, best Dutch film of 1995, employed footage shot in Indonesia between 1912 and 1932 and included the above mentioned scene showing Chinese workers being forced by Dutch colonialists to shower and where their "sexual organs are clearly filmed"(32)

According to pinku-eiga director Takahisa Zeze "there used to be very strict rules about pubic hair, but now as long as you don't show the act itself, then the hair is ok. According to the rules in Japan, if you show a man and a woman, stark naked and having intercourse in a full body shot, then it becomes an R-18" (33). The laws in Japan forbid any kind of scenes with actors in full frontal nudity during intercourse, even if this is simulated. Thus, the exposure of genitals has also stopped being an object of censorship if it is not accompanied by intercourse. As result of this hair boom and the relaxation of the obscenity law concerning the depiction of pubic hair in printed and audio-visual materials, since the late 90s many foreign erotic films that had initially been censored when first released in cinemas or video have been re-released on DVD with the term hair mushuusei ban (hair unaltered version) hair mushuusei kanzenban (hair unaltered complete version) added to their titles. However, this new nomenclature does not assure a fully unaltered version, as if genitalia is displayed in scenes of sexual intercourse, whether simulated or not, it would be certainly obscured with bokashi.(34)

The Adult Video has also recently jumped on this hair nude boom wagon. Thus, in August 2006 Viderin (abbreviation Nippon Video Rinri Kyoukai or Japan Video Morality Association, known in English as the Nihon Ethics of Video Association or NEVA), one of the industry's oldest self-regulatory bodies formed in 1972 by major AV companies, lifted the ban on pubic hair displayed in porn movies and set up new standards for the use of mosaic censorship. These new measures were adopted as in recent years Viderin "has been rapidly losing members as adult DVD companies, under pressure from censorship-free Internet porn, migrate to new orgs with looser standards. In the past two years, DVD shipments by NEVA companies have declined by 40 percent"(35). Since then, the mosaics that must still cover the genitalia have become smaller and more transparent.

KYONYU WAKA OKUSAMA NETTORI YUUWAKU ECCHI (L)
MOE~IJIRARERU NO DAI SUKI! (R)

Different Adult Video production companies have been proudly advertising their products with new and more revealing types of digital mosaic such as giri giri mosaic by S1, Degiemon MAX by Soft on Demand, Hyper Digital Mosaic by Moodyz or Super Mosaic by Momotaro, which has led to the raid on 23 August 2007 by Tokyo Metropolitan police of Viderin offices for they first time in its more than 30 years of history. The police considered that two works by the AV production company H.M.P. (MOE~IJIRARERU NO DAI SUKI! and KYONYU WAKA OKUSAMA NETTORI YUUWAKU ECCHI) and one by Attone Communication violated obscenity laws as they failed to reach the mosaic standards for their distribution and sale. The DVDs had been released in September 2006 right after Viderin's issue of a new and more permissive system of mosaic censorship. The offices of these companies and several video shops were also raided by the police. Katsumi Ono, the chief censor of Viderin, the presidents of H.M.P Hiroyuki Gorokawa and Attone Communication Yukio Umezawa and two other people were arrested charged with distributing obscene material.

Viderin has also lost ground as the most influential independent regulator of porn media in Japan. Thus, the AV company Soft on Demand began in 1996 its own regulatory group known as Media Rinri Kyoukai (Medi-rin) or Media Ethics Association "composed of "indie" companies, independent AV studios which explored porn themes forbidden by NEVA rules and which used a thinner censorship mosaic for their videos. Medi-rin was re-organized in 2005 to form the Content Soft Kyoudokumiai or Content Soft Association (CSA) to review and regulate adult videos and adult game software." (36). Furthermore, another self-censorship organization Visual Software Contents Kyoudokumiai or Visual Sotfware Contents Industry Coop (VSIC) received in December 2003 a licence from the Ministry of Economy, Trade and Industry (METI to operate, becoming the only government sponsored adult video industry censorship organization (37).
MISSHITSU
(Honey Room)

Nevertheless, in April 2002 a manga Misshitsu (Honey Room) was taken to court for the first time charged with obscenity causing a massive commotion and starting a public debate on freedom of expression and the ubiquitousness of manga with sexual content all over the country. In January 2004 the Tokyo District Court passed sentence and punished the editor of the manga Motonori Kishi with one year in prison for violating article 175 of the Penal Code for selling and distributing obscene literature. In this instance, the president of the jury declared that the manga was far too graphic. Given the large variety of pornographic material found in all sort of formats and sold all around Japan, the court decision caused some amount of incredulity. Kishi made an appeal to the Tokyo High Court alleging a violation of freedom of expression. The sentence imposed by the Tokyo District Court was reduced in June to a fine of 1.5 million yen by the Tokyo High Court. However, the presiding judge rejected any allegations made by the accused that Article 175 is unconstitutional as it violates freedom of expression guaranteed by Article 21 of the Constitution.

"Both the district and high courts based their rulings on the work's obscenity on three prerequisites under a 1957 Supreme Court ruling. In a judgment against the translator and publisher of "Lady Chatterley's Lover" by D.H. Lawrence, the ruling stated that expression is obscene when it is "unnecessarily sexually stimulating, damages the normal sexual sense of shame of ordinary people, or is against good sexual moral principles" (38) .

This trial complements in a way the trial of the four pinku-eiga in the 1970s. Here we need to emphasize one more time that since being declared innocent of obscenity in July 1980 no other film has been taken to court for obscenity. It is little wonder that Kishi had declared he did not understand why only his publication had been charged with obscenity. All the law cases put forward in this article underline the arbitrariness, lack of consistency and relative unconstitutionality in which Article 175 of the Penal Code is applied and question the validity of the Japanese judicial system. Many commentators find this article anachronic and have pointed out in numerous occasions that it violates Article 21 of the Constitution, which guarantees "freedom of assembly and association as well as speech, press and all other forms of expression". This article also states that "No censorship shall be maintained, nor shall the secrecy of any means or communication be violated".

In its own defence, the Japanese courts have always declared that the freedom of expression guaranteed by Article 21 of the Constitution is not absolutely unconditional as it should not be used against the public welfare standard of Articles 12 and 13 of the Constitution. Alexander points out that "To date, the rulings of the Japanese courts have been quite consistent in confirming the policy that protection of the public welfare through censorship of obscenity is not a violation of free expression guarantees" (39). Again the standards for this restriction of freedom of expression were set up during Lady Chatterley's Lover's trial when the Supreme Court "stated that human rights guaranteed by the Constitution were not absolute but subject to the public's welfare, which included the maintenance of a minimum standard of morality concerning sexuality, and that freedom of speech, while essential to democratic government, received the same limitation" (40).
As we can see the most important point to consider regarding the decision of the Supreme Court with regards to the translation of Lady Chatterley's Lover is that it gave more priority to Article 12 of the Constitution than Article 21. In few words, the Surpreme Court has recognized and declared that freedom of expression is limited. Thus, basic human rights such as freedom of expression "whether they contain self-restrictive clauses or not, they all fall under the delimitation prescribed under the provisions of Articles 12 and 13 in the interest of the public welfare, so that no one may abuse the privileges guaranteed thereunder". (41).

Not only Article 175 has been accused of being unconstitutional but also the Custom Tariff Law (Kanzei Teiritsu Ho) that dates back to 1910. Under its article 21, paragraph 4, Customs Bureau has authorization to confiscate, prohibit or restrict (for example, requesting cuts or use of obscuring technology in foreign produced films) the import of "books, drawings, carvings, and any other article which may harm public safety or morals (obscene or immoral materials, e.g., pornography) (42). Interestingly enough, the Japanese version of this definition found in Japan Customs homepage does not specify pornography as the obscene or immoral material believed to harm public safety of morals (43)(44). Several times "the right of the government to conduct such activities has been contested. In 1984 however, the Supreme Court of Japan ruled that the screening of imported books and magazines by custom authorities did not constitute censorship" (45).

According to the article on obscenity in Kodansha's Japan: An Illustrated Encyclopedia (p. 1122), "Japanese law and society had been relatively tolerant of erotic material" and points out that "obscenity is primarily regulated not by judicial decisions, but by an elaborated combination of governmental and non governmental mechanisms such as self-imposed industry codes administered by trade associations or industry ethics committees" (46) as in the case of Eirin, Council on Publishing Ethics (Shuppan Rinri Kyogikai, established in 1963), The Principles of Newspaper Ethics (Shimbun Rinri Koryo, established in 1946). In addition, in 1955 several "media organizations formed a number of self-policing organizations in response to campaigns for enacting legislation to protect the morality of the youth" (47). Also at this time several citizen's organizations were created such as the Society for the Protection of Children (Kodomo o Mamoru Kai), the Central Council on Youth Problems (Chuo Seishonen Mondai Kyogikai), Ban Harmful Books (Akusho Tsuiho) and the Society to Promote Self-Discipline in Publishing (Ahuppan no Jishuku o Motomeru Kai).

In his article on censorship Kensuke Tamai questions whether all of these self-censorship organizations that enforce the vague government standards on censorship are an effective way to defend freedom of expression. (48). Even more contradictory, and an element of Japanese society that has fascinated and baffled a great number of commentators is that, in spite of the huge amount of pornographic publications and films depicting ultra-violent and ultra-sadist acts catering a wide range of unimaginable fetishes and minority sexual practices, the main concern by the Japanese censors has been focused on hiding the pubic hair and the genitals. Now, the question is until how much longer the democracy with the second largest economy in the world would be able to justify these censorship practices backed inconsistently and vaguely by several Supreme Court rulings that are clearly unconstitutional?

MAPPLETHORPE
published by Uplink

In February 2008 however, this very same Supreme Court of Japan overruled the 2003 Tokyo High Court decision that the book "Mapplethorpe", a collection of 260 black-and-white photographs by Robert Mapplethorpe (1946-89) violated obscenity laws, which might lead to a relaxation of censorship criteria. In November 1994, Takashi Asai, head of Uplink, published a Japanese edition of "Mapplethorpe, which English edition had already been published in Japan by Ramdon House and is included in the collection of the National Diet Library. On 21 September 1999, after returning from a trip to the United States and Canada where he had been showing the Japanese edition to publishers there, the book was confiscated by customs officers and could no brought into the country. Again this decision is backed up Article 175 of the Penal Code, which makes punishable the selling or exhibiting of such material in Japan. A lawsuit between Asai and the customs authorities followed with the Tokyo District Court ruling in favour of Asai in January 2002 stating "that even if something is found obscene ... there is no need to control if it does not harm public morals"(49). The court also said "that given the importance of freedom of expression, the Customs Tariff Law should be applied with restraint" (50). Moreover, and probably more important, the photobook had been available for purchase previous to Asai's encounter with Narita customs authority. During the period from January 1, 1995 to March 31, 2000 it had sold 937 copies in total and its sale had been advertised on the front pages of morning papers of nationwide newspapers copies. The customs authorities naturally appealed to the Tokyo High Court and this reversed the district court ruling on 27 March 2003. The high court considered 20 photographs of the book to be obscene, and therefore harmful to public morals, because "they show male genitals positioned centrally and prominently(51).

The Supreme Court ruling states that "the photograph collection can be deemed to have been edited and composed from an artistic viewpoint i.e. compiling, in one book, major works of a photographic artist, who had established a high reputation among art critics..." as well as that it covers "a variety of works such as photographs of portraits, flowers, still lifes, male and female nudes, and the relative importance of the photographs in dispute in the photograph collection as a whole is significantly small, and these photographs are black-and-white photographs and do not directly depict scenes of sexual intercourse. For these reasons, it continues, "it is difficult to find it to be appealing primarily to the sexual interest of people who see it" (52). This sentence outcome has led some to speculate over the possibility of seeing films released in Japan free of any bokashi (53). Meanwhile, the film SHORT BUS (dir: John Cameron Mitchell, released in Japan on 25 August 2007), was self-censored with one hundred bokashi obscuring its copious real sex scenes. Asked about this decision the director finds strangely funny how Eirin has problems with displaying genitalia but not with sperm (54).

Notes

  1. Japan: An Illustrated Encyclopedia, p. 170.
  2. (return)
  3. Takato, Natsui
  4. (return)
  5. Alexander, James R., p.154. (return)

  6. The Supreme Court stated the standard for judging obscenity in 1957 as that which wantonly stimulates or arouses sexual desire or offends the ordinary sense of sexual modesty of ordinary people, and its contrary to proper ideas of sexual morality. The Supreme Court also declared that the protection of freedom of expression granted by Article 21 of the Constitution did not exclude the prohibition of obscenity. Nevertheless, in 1969 the Supreme Court ruled that guarantees of freedom could cover items artistic or intellectual value that would otherwise be prohibited by obscenity statues. In 1969 and again in 1971 the court ruled that obscenity be judged in reference to the entire publication and that the intent of the author, publisher, and readers should not be considered. However, with regard to publications in a foreign language , the court ruled in 1970 that consideration be given to the nature of the readership.Kensuke Tamai, Censorship in Kodansha Encyclopedia of Japan, Volume 1, 1983, p. 254). (return)

  7. Judgment upon case of translation and publication of LADY CHATTERLEY'S LOVER and Article 175 of the PENAL CODE. (return)

  8. As above (return)

  9. Alexander, James R., p.155. (return)

  10. Ibid, p. 155-156 (return)

  11. Ibid, p. 165 (return)

  12. Another case in which the Supreme Court pronounced its opinion over the standards of the term obscenity was during the re-issuing of a story by Nagai Kafu, Yojohan. During the trial of Yojohan the Supreme Court offered its most clear exposition over the term obscenity declaring that it should be judged according to five criteria: (1) the relative boldness, detail, and general style of a work's depiction of sexual behavior, (2) the proportion of the work taken up with the sexual description, (3) the place assumed by sex within the intellectual content of the work as a whole, (4) the degree to which artistry and thought content mitigate the sexual excitement induced by the writing, and (5) the relationship of the sexual portrayals to the structure and plot of the story. (Allison, Anne, Notes 10). (return)

  13. Beer, Lawrence W., de Sade Case in Kodansha Encyclopedia of Japan, Volume 2, 1983, p. 88-89 (return)

  14. Alexander, James R., p.165. (return)

  15. Yoshimoto, Mitsuhiro, Kurosawa: Film Studies and Japanese Cinema, p.104.(return)
  16. Keene, Donald, Dawn to the West: Japanese Literature of the Modern Era (Fiction), p.21.(return)
  17. Yoshimoto, Mitsuhiro, p.104.(return)
  18. Makino, Mamoru, Nihon Eiga Kenetsu Shi, pp.32-33.(return)
  19. Gerow, Aaron, On the Conditions of Film Censorship in Japan before Its Systematization in In Praise of Film Studies: Essays in Honor of Makino Mamoru, pp. 47-48.(return)

  20. Domenig, Roland

    , The Market of Flesh and the Rise of the "Pink Film" in The Pink Book: The Japanese Eroduction and Its Contexts, pp. 20-26.
    (return)

  21. Japanese Penal Code.(return)
  22. Set in a ramshackle prefab brothel lying in the penumbra of the Yokota Airbase, Black Snow tells the tale of a disturbed youth who, after spying on his mother with a black serviceman, finds himself unable to attain sexual arousal unless fondling a loaded pistol. Later that night, he stabs and murders the GI before running amok through the building and finally slaying his mother. Carted off by the military police, the film ends as he is gunned down by a firing squad.
    (Synopsis taken from Sharp, Jasper
    Black Snow Review). (return)

  23. Nikkatsu Roman-Porno Episode 6 Art or Indecency; that is the question: Geijutsu ka, Waisetsu ka, Sore ga Monday da!(return)

  24. In addition obscene writings, films, and pictures are also regulated under the Entertainment Facilities Law (Kogyojo Ho), The Law Regulating Business Affecting Public Morals (Fuzoku Eigyo Torishimari Ho), the Healthy Environment Law (Kankyo Eisei Ho) and the Broadcasting Law (Hoso Ho) among others. Beer, Lawrence W., Obscenity in Kodansha Encyclopedia of Japan, Volume 6, 1983, p.50. (return)

  25. Schilling, Mark. (return)

  26. Oshima, Nagisa, p. 269. (return)

  27. Ibid, p. 273. (return)

  28. Wikipedia Japan: Hair Nude.(return)

  29. Allison, Anne, Public Veilings and Public Surveillance: Obscenity Laws and Obscene Fantasies in Japan in Permitted and Prohibited Desires Mothers, Comics, and Censorship in Japan, p.167.(return)

  30. WebDICE: Mapplethorpe Shashinshu Saiban, Saikousai Waisetsu no Kijun Minaoshi! Eiga Kara Bokashi ga Nakunaru!?(return)

  31. Helms, Udo, Obscenity and Homosexual Depiction in Japan in Queer Asian Cinema: Shadows in the Shade, pp.127-128.(return)

  32. Ibid., p.136.(return)

  33. Wikipedia Japan: Hair Nude.(return)

  34. Internet Movie Database, Moeder Dao, de schildpadgelijkende: Japanese Officials Censor Award-Winning Documentary. (return)

  35. Sharp, Jasper and Mes, Tom. (return)

  36. Hair Mushuusei Ban. (return)

  37. Schilling, Mark: Japanese cops arrest porn censors: Ono-approved DVDs violate industry guidelines. (return)

  38. Wikipedia: Soft on Demand. (return)

  39. VISC. (return)

  40. Suspended sentence of racy comics publisher switched to fine , Japan Times, Friday, June 17, 2005. (return)

  41. Alexander, James R., p.156 (return)

  42. Mashima, Rieko and Hirose, Katsuya (return)

  43. Judgment upon case of translation and publication of LADY CHATTERLEY'S LOVER and Article 175 of the PENAL CODE(return)

  44. Japan Customs (English version) (return)
  45. Japan Customs (Japanese version) (return)
  46. Japan Customs (Japanese version) (return)

  47. Japan: An Illustrated Encyclopedia,p. 171. (return)

  48. Ibid, p. 1122. (return)

  49. Tamai, Kensuke,p. 254-255. (return)

  50. Ibid, p.254. (return)

  51. Kawabata, Tai Is obscenity in the eye of the public?(return)

  52. Ibid.(return)

  53. Ibid.(return)

  54. Supreme Court of Japan:Judgment concerning the enforcement of import control under Article 21, para.1, item 4 of the Customs Tariff Act (prior to revision by Act No. 22 of 2005) upon articles of obscene expressions that have already been distributed or sold in Japan, and Article 21, para.1 of the Constitution(return)

  55. WebDICE: Mapplethorpe Shashinshu Saiban, Saikousai Waisetsu no Kijun Minaoshi! Eiga Kara Bokashi ga Nakunaru!?(return)

  56. Eiga.com: Short Bus: John Cameron Mitchell Kantoku Interview(return)

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©Joaquín da Silva
Date of Publication: 24/10/2006
Revised and updated: 21/04/2009
Revised and updated: 4/11/2014