Gender, Technology and Development

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Domestic Violence Victims as Homicide Offenders: A Study of Gender Ideology in the Japanese Criminal Justice System
Kana Takamatsu Gender Technology and Development 2004 8: 255 DOI: 10.1177/097185240400800205 The online version of this article can be found at: http://gtd.sagepub.com/content/8/2/255

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Domestic Violence Victims as Homicide Offenders: A Study of

Gender Ideology in the Japanese Criminal Justice System

KANA TAKAMATSU

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 offender mirrors this prevalent image, she tends to not be punished strictly by the criminal justice system. 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 female homicide cases—in this
case

domestic violence-were

not

considered serious crimes,

particularly until the Law on the Prevention of Spouse Violence and Protection of Victims was passed. Achieving gender equality in a society is crucial to not only reduce the number of victims of domestic violence, but to also give a fair judgment (not necessarily a light punishment) to women criminal offenders.

Domestic Violence in

Japan

Cabinet Office in 2002, has been abused by her husband and/or partner. Five percent of the women have felt that their

According

to the

study

conducted

one

out of every five

women

by The living Japan

in

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

University

of

Tokyo, Japan.

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husbands and/or partners will kill them. Women who sought medical following abuse by their husbands and partners are four times more than men in the same situation. Women form 91.7 percent of the victims of crime in spousal relations (Gender Equality Bureau, Cabinet
treatment

Office, 2003).
Domestic violence (DV hereafter) against women violates the human rights of women (Watanabe, 1994: p. 14). Japanese law implies the existence and protection of human rights for both women and men. However, DV had not been considered a serious crime for a long time in Japanese society. DV was considered non-criminal and was ignored for a long time. Therefore, there is little information about DV in the criminal justice system. A small amount of information about DV 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 divorce if physical and mental violence are combined. But according to Kakuta (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 Law on the Prevention of Spouse Violence and Protection of Victims was passed in the Diet on 6 April 2001, and became influential as of 13 October 2001 (it was fully influential beginning in April 2002). After the law was put into practice, a total of 1,666 spouse/partner cases were filed in 2002. Of these, 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 shows that the ratio of homicide cases was quite high in comparison to other forms of violence within spouse or partner relationships. In 77 cases, wives or women partners committed homicide against their husbands or men partners in 2002. The Law on the Prevention of Spouse Violence and Protection of Victims allows district courts to issue six-month restraining orders against abusers and to evict abusers from the home for as long as 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 administrative sectors, especially the police department. The number of arrested abusers increased by 20 percent, and in addition the number of women who came to consulting centers has also increased. Between 13 and 31 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 is considered very high in Japan compared with other countries in Asia. It was indicated, for instance, that the police did not take care of the DV cases after the law was implemented in South Korea (Japan-Korea Joint Research Project for the Development of the Social System to Prevent Violence Against Women in the Family-Possibilities in Asia, 2001). There are some issues that should be revised in this law. The law currently contains a provision for the courts to issue emergency injunctions against abusive partners without a hearing when danger is imminent for the victim. This, however, only focuses on actual physical abuse by a partner, and should clearly be extended to include mental and verbal abuses as well. In addition, the safety of the victims and their children is not guaranteed. Finally, support systems for abused women to assist them in starting a new life are inadequate. Besides, despite the fact that DV has been considered a crime since 2001, it cannot be assumed that DV is taken into account adequately enough as a background of homicide 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 to understand both the gender biases prevalent in the criminal justice system in Japan, and the difficulties abused women face in starting a new life. According to the Human Development Report of 2003, the human development index (HDI) of Japan ranks in ninth place out of 173 countries. In the 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 that womens position in Japanese society is not equal to that of mens. Most especially, women are excluded from political and economic activities and occupy a peripheral position within society in Japan. It has to be mentioned that peoples thoughts have changed. According to a survey by the Yomiuri-Shinbun newspaper, 73 percent of all people interviewed disagree with the rigid gender division of labor which categorizes men as breadwinners and women as housewives. Of the people aged 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

over

gender

relations have been

changing

time.

Despite this change, womens participation in many areas is still low. women parliamentary members and women business managers account for a low percentage of the total. Japan also has a slightly lower female labor force participation than major nations. There is no significant gap between Japan and the Western nations in basic legal frameworks for achieving gender equality. However, unlike France and Sweden for example, Japan provides its women workers with insufficient support
In Japan,

for balancing work and childcare. Women workers with high educational backgrounds do not enjoy sufficient job/promotion opportunities to allow them to demonstrate their full potential, because Japan still 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 workplace and politics, although women in the Western nations already enjoy 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 nations are 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 largest percentage in Japan and all other surveyed nations 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, the answer option Women should endeavor to empower themselves occupies the largest percentage, while among male Japanese respondents and women and men in the other nations, the answer option Correcting rigid social standards accounted for the largest percentage. These survey results indicate that the largest obstacle to gender equality is traditional social standards, irrespective of how successfully women participate in the labor market. Japan has a larger gender wage gap than the other nations. Class of position and length of service years have the most significant impacts on the wage gap between women and men. Japan has a lower percentage of women managerial workers than the other surveyed nations. Although
measures

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percent of all workers, women managerial workers much lower percentage in Japan than in the Western nations. Japan also has a much larger gap between the female employment rate and women managerial workers rate among all the surveyed nations except South Korea (The Cabinet Office, 2003). In Japan, sex-role stereotypes are still deeply rooted and womens right to work is not fully guaranteed. Many women rely upon men economically even when they have paid jobs, and cannot have adequate autonomy in their social, mental, and sexual lives. Tsujimura (1997: p. 28) mentions that the Japanese government changed their law in order to follow the declaration of a UN treaty; however, the changed laws still place women in a subordinate position and support the centrality of womens character and the gender division of labor. The criminal justice system is not an exception. In Japan, it is often said that the criminal justice system is a male-dominated sphere. The percentage of women judges in 2002 stood at 12.2 percent, while the percentage of women prosecutors was only 7.7 percent. The number of judges and prosecutors has been increasing year by year (The Cabinet Office, 2003); however, it is clear that the criminal justice system in Japan is a male-dominated sphere in terms of the number of people operating it. According to Miyazono (2000: p. 53), the low ratio of judges and prosecutors is in fact related to the treatment of women offenders by the criminal justice system. The fact that this is a predominantly male sphere means that defining and interpreting crimes, as well as handing down sentences, are all done primarily by men and, therefore, the experiences of women offenders are considered through male biases.
women

account for 40

account for a

Characteristics of Crimes between Women and Men

Feminist criminologists point out that the characteristics of crimes committed by women and men are different, especially in homicide cases. A large percentage of female homicide cases occur within the household, twice the percentage of male homicides committed on household members (Sato, 1985). Homicides committed by women are strongly tied to relations within the household. It can clearly be assumed then that the backgrounds of and reasons behind homicide cases are also strongly related to the environment within the household. When looking at the relationships between victims and offenders, Iwai (2000) found that 42.6 percent of the homicide cases (both female and male homicide) occurred within households; the victim and offender knew

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each other in 44.3 percent of the cases, while in only 13 percent of the they strangers. This means that nearly 90 percent of homicide cases occur within relationships. On the other hand, only 4.3 percent of 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 does not intervene in family affairs, thereby preventing such cases from becoming visible in the first place. This proves that violence within the household does not become visible to society until the abused is killed.
cases were

Women, Criminal Offenders in the Criminal Justice System

Pollak (1950) explains that the female crime ratio is low because women are treated generously in the criminal justice system, a male-dominated sphere. In this sphere, police officers do not want to arrest them, prosecutors do not want to prosecute them, and judges do not want to hand down sentences to them. Miyazono (1994: p. 239) says that women receive lighter sentences than men because almost all crimes committed by women are not serious, and moreover, they are not the primary motivators of the crime. In addition, women criminals are not threats to society because they do not commit crimes that require general prevention (see Asada et 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 commits a crime, it is considered not only an activity that goes against the law, but also an activity that goes against the model of women inherent in both society and the criminal justice system. Young women offenders are treated more strictly than young men offenders. In addition, women criminal offenders are treated more strictly when their image goes against that of women 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 stereotypical idea of women, and hence women criminal offenders are treated ideologically, not judicially, within the system, which has different standards for
women

and

men

offenders. In this system, what percentage of

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women

and

men are not

prosecution of traffic regulations). According to Figure 1, the ratio of mens non-prosecution is approximately 20-30 percent, while that of women is higher at 50 percent. It can be seen that in any type of crime, women tend to be prosecuted much less than men, which Pollak (1950) and Miyazono (1994) explain in
rate

prosecuted? I would like to show the nonof the last 10 years in Figure 1 (not including violations

different ways. Figure 1 ojNon prosecution of Women and Men Offenders

Ratio

in

Japan

Source: White

Paper on Crime,

2000.

What punishments have women homicide offenders received? One set of 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 of execution ratio was 70.6 percent. However, in homicide cases against the husband/partner (75 cases), the stay of execution ratio was only 48 percent. Of these 75 cases, 36 led to imprisonment with execution. One case received two and a half years imprisonment; seven cases received up to three years imprisonment; 18 cases received up to five years imprisonment ; nine cases got up to 10 years imprisonment; three cases called for more than 10 years imprisonment; and one case was deemed worthy of lifetime imprisonment. The ratio of stays of execution (for both women and men) on homicide cases was 29.4 percent in 1981, therefore, the ratio of stays of execution in the case of women was relatively high. This ratio is lowest in cases where family members are the victims.

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Analysis of Court

Verdicts

Court verdicts show how women criminal offenders are ideologically treated by the criminal justice system. Two case studies from 1979 and 1994 were analyzed. All the information about these trials is from Hanreijihou (Hanreijihou, 953/1539). Given the scope and limitations of this 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 consequence of having been a victim of domestic violence. Obviously, there are two kinds of crimes in these cases: homicide against husbands/partners, and abusing wife/partner (domestic violence). These crimes occur within the household; therefore, gender relations are important factors to be examined in these case studies. Although this study focuses on women offenders, women are often mentioned as victims, so it is important to understand 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 court cases that have outstanding judgments or involve rare cases. They quote cases in detail, short of providing the names of victims and offenders. The book covers all kinds of law, so female homicide cases against a husband or partner as a consequence of domestic 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. Providing them with the opportunity to state their collective case is crucial towards changing the current criminal justice system in Japan as well as a Japanese society, both of which have tolerated domestic violence. Case 1
20 September 1979 Court: The Osaka Supreme Court Source: Hanreijihou No. 953, pp. 136-39 The 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 took her to an area overlooking the sea (which was deserted at the time) and abused her for approximately 20-30 minutes. Then, the husband told her to kill herself and he tried to strangle her. The defendant became so overcome with fear that she lost her mind, and felt so much anger resulting from his daily abuse that she strangled him with a towel. She continued strangling him even after he had stopped struggling. The trial admitted

Judgment:

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exceeding the legal definition of self-defense. However, the events leading up to the crime as well as the domestic vioregarding was reason to feel sympathetic towards her. Most of the factors there lence, in the crime were ones caused by the husband. Moreover, the resulting defendant went to the police station to confess everything right after the crime had occurred. In this homicide case, a sentence was passed that reflected conditions deemed beyond the legal definition of self-defense. The sentence was eventually reduced, the second trial admitting the results from the first trial. The prosecutors appeal was denied, and the defendant was exempted from punishment. Text analysis of the verdict: These texts reveal the criminal justice systems image of women.
this
as an act

The defendant had been abused before their marriage. In addition, he had asked for marriage to the defendant persistently in many strange ways, going so far as to cut his finger and deliver the severed member to 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 the time 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 other cases. The defendant is explained as not being able to break up with him because of his strange personality. This is her decision, but she is imaged as a passive woman. The text stresses his abnormality as his reason for committing domestic violence. Abnormal men commit domestic violence and ordinary men do not. Clearly, domestic violence as a crime is not taken into account seriously enough in the criminal justice system Social opinion towards men who are not employed is strict. This is because of the gender division of labor. Men in the household are expected to bring income to the family. So, the value of the victim (husband) was considered very low in Japanese society. These texts idealize the concept of the devotion of women.
After they were married, they had two children. However, the husband abused 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)
was a

case. It is reasonable to understand what the declared on the other hand, the background of however, prosecutor the crime, her motivation for killing her husband, as well as the fact that she had lost the sight in her left eye, were all the results of very serious violence towards her. At the same time the defendant had tried to support her family as best she could. (By the Judge: explaining the husbands personality)

This

very serious

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 devotes herself to her family even though she has been abused seriously. Her characteristics as a wife and mother are taken into account more importantly 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. There were no references to inaction on the part of the hospital in reporting the
case

to

the

police.
11

Case 2 1997 Court: The Nagoya District Court Source: Hanreijihou No. 1539, pp. 143-46 In 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 knife while 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 down a reduced sentence, although admitting that the crime had gone beyond self-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 shirt and then hit her on the back of the head with a golf club. However, after

Judgment:

July

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this he had stopped attacking her and lay down on his back. The defendant killed 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 behavior would have continued. For this reason, the case did in fact center on an urgent situation. The actions of the defendant were enough to stop his violence at a certain time. However, because of where she stabbed himin the neck, an important part of the body-her actions in this case were deemed to have gone beyond mere self-defense. Considering the relationship between the defendant and the victim, the court was sympathetic towards 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 a son from her first marriage. She worked for a coffee company in Nagoya during the daytime. She also began a part-time job at a bar/restaurant in approximately April of 1987. (By the Judge: explaining the background of the defendant) Divorce has not been largely accepted by Japanese society. It is especially true for women because divorce goes against the image of women implicit in the criminal justice system. Therefore, this text shows that she had some problems inherent in her personality.
The defendant was abused and had to visit a hospital a few times for treatment of injuries. However she did not discuss this violence with anyone because she thought her partner would abuse and/or threaten her relatives. (By the Judge: explaining the defendants abused

situation)
She tried to protect her family (relatives) before she attempted to solve her own problems, and that is why she kept quiet about the abuse. Such silence in family matters is socially valued. In addition, domestic violence is something that should be kept secret and confined to the home as revealing ones problems in public is considered shameful in Japanese society. To expose domestic violence is to shame the family in public.
These points should be considered and sympathy should be felt for the 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. Immediately after killing him, she called 110 [police] and confessed as to what she had done. She had done nothing to deserve the 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 domestic violence. At the same time, the text stresses that women can be abused for certain reasons. The text implies that one can deserve to be abused. The idea that the husband controls and disciplines the wife is implicit in this 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 wrong before. 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 paying for her crime. (By the Judge: explaining what people around her

wanted) always controlled and supported by others. The idea that supposed to be passive and not agents is implied in the text. There is an assumption that women criminal offenders do not need to be controlled by the criminal justice system. Instead, they can be controlled by male household members. In this case, the support from the defendants son is considered important. Traditionally, a Japanese woman should
Women
are women are

follow her husband and after his death, she must follow her son, because the son becomes the head of household 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 defendant 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: elaborating on 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 by alcohol. It shows a certain tolerance towards mens drinking culture and violence against women. In addition, it assumes that violence is caused by alcohol, and not by the patriarchal society that perpetuates the male doctrine. It prevents domestic violence from being considered a serious crime. This text implies that domestic violence against women is acceptable if there is a reason. Domestic violence against women within the household has largely been accepted in Japanese society for a long time, and the judge clearly still has this idea. This text shows the wrong assumptions of domestic violence.
there was a power difference between the defendant and the 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 did not, and if the victim were not to attack, they could struggle equally. (By the Judge: explaining that this case is not a legal selfdefense case)

Obviously,

The text focuses on the physical power differences between the abuser and 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 patriarchal society, and so is socially supported and created. It focuses on only one incident of domestic violence, so there is no understanding of domestic violence as a persistent and serious crime. Therefore, having a weapon can be explained as an effective way for the defendant to protect herself. This text stresses that the justice system considers domestic violence as happening only at the time in question. It ignores the fact that domestic violence happens repeatedly and over long periods of time. The victim of domestic violence feels a certain degree of stress and threat from the abuse. The psychological issues are ignored. These texts show the biases inherent in understanding the facts of domestic violence.

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

Regarding

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268
case, her activities done in to stop the victims abuse

self-defense should have been done in order temporarily. (By the Judge: explaining the situation right before the defendant committed her crimes)
case

This
a

exhibited actions that went beyond self-defense, and it was crime to have stabbed her victim in the neck and killed serious very him. However, the fundamental factor of this crime was the abuse of the defendant by the victim persistently and continually. This final and very dangerous activity had the potential to end her life. (By the Judge: explaining the homicide case)

This text implies that domestic violence can be stopped temporarily and will not cause any problems afterwards. It ignores the situation of the abused. During instances of escalating domestic violence, there is no time for making up and calming down; therefore, the abused are violated most of the time. Thus it is very difficult to define what is temporary. This text implies that the crimes committed by the defendant are far more serious than the violence against the defendant by the husband. Domestic violence is a crime; however, it is simply explained as abuse.

Engendering an Analysis of
Crime and Punishment t
Homicide is prohibited under article 199 of the Japanese pena! code. The types of punishment that defendants in homicide cases can receive are capital punishment, imprisonment for life, or imprisonment for more than three years. It is worthwhile to analyze the type of punishments the defendants in each case study received. Before analyzing each case study, the summary of the punishments of the case studies is shown in Figure 2. Figure 2 of Each

The Punishments

Case Study

Source: Hanreijihou 953/1539.

These

cases can

be said to involve

simply compared

to the laws cited.

extremely light punishments, when Clearly, each offender was the victim

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269

of DV, yet at the same time they took a human life. As the case studies show, these cases did not contain legal self-defense activities and, therefore, the killing of the husband or partner was not deemed acceptable, even if the murderous intent was understood. According to an interview with a lawyer, the punishments in these case studies are quite light. Generally, a stay of execution or exemption from punishment is a light sentence, and the defendants have to be imprisoned for at least three years. The lawyer interviewed mentioned that women are treated generously within the criminal justice system because they are not treated as people with agency. In addition, the system does not always have to control women because family members, most often male family members, can control them instead. It is true that their experiences of abuse should be understood and sympathy felt, but the offender in each case had ended a human life-a very serious crime-so clearly there must be a certain punishment. In addition, it is good for women criminal offenders to be in prison for a certain period of time in order to put their lives in perspective. (These statements are from a personal interview with a lawyer, conducted on 25 February 2001.) In terms of the value of each human being, the idea that the lawyer mentioned is reasonable. Admittedly, there can be a certain level of reduction of punishment because of the background of the crime. Societies have laws in order to maintain social order, and these laws punish those who go against that order. The law and the criminal justice system, not the victim of a crime, are in place to justify or punish activities. Even if women are abused, killing the abuser is illegal, except in case of legal self-defense. Victims are not allowed to punish the abuser themselves in civilized societies. Nonetheless, the problem is whether or not DV is adequately considered to be an illegal activity. Given all this, a case can be made for the defendants in the case studies, as they had to commit homicide because the law does not function properly in the case of DV They had to arrive at a solution by themselves. Hisae Miyazono, a lecturer of law (personal discussion, 9 March 2001 ), noted that the purpose of law is to provide punishment to people who break the law in order to maintain the social order. According to the law, the homicides in these case studies are the consequences ofDV, therefore, if the offenders were not abused, they would not have committed the homicides. In addition, there is no possibility that the offenders would commit homicide again. Even if they were not imprisoned, rampant fear in society would certainly not be the result. Therefore, strong punishment
was

not necessary.

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It is also reasonable in terms of the purpose of punishment. Punishare 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 prevention function: prevent the criminals from the repetition of an 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 of unsound mind or is an accessory, and the reasons for reduced punishments include self-defense, self-surrender, and unsuccessful attempt. Therefore, light punishments for the defendants in these case studies are reasonabie. The punishments have to be in accordance with the offenders responsibility. Therefore, the offenders age, personality, background, motivation, methods, result, harm on society, and behavior after the crime has been committed are taken into account. The conditions where punishments have to be or can be reduced have all been mentioned. How are the punishments in these case studies reduced, and how are the reasons explained ? It is important to take a look at the actual punishments those defendants received and the punishments that the defendants side claimed. The punishments that the prosecutors and the defendants side claimed as well as the actual punishment that the defendant received are shown in Figure 3.
ments

Figure 3 Punishment Claims

Source:

Hanreijihou

953/1539.

Accordingly, it is clear that the claim of legal self-defense was not admitted in the DV situation. In addition, the background of the crime must 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 of murderous 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 murderous intent is explained as one of protection, resulting from anger. In case 1, the existence of murderous intent is not examined. Instead, it is explained

that while the defendants murderous intent can be assumed, it should not be criticized. The defendants exhibited murderous intent, so their crimes were not accidental. They made a choice to commit homicide against their husbands. As legal self-defense is not admitted, the only other option is to remain passive. Homicide against ones husband is obviously illegal, and therefore 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 who commit 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, if the crimes have a background worthy of social sympathy, punishments will also not be given or will be reduced. According to the Critical Discourse Analysis (Titscher, 2000), DV prevalent in these case studies is not understood enough. But why are the punishments reduced? Violence against women in the private sphere is not usually seen by society, although DV is progressively being considered a crime. However, this does not mean that abused women who kill their husbands are socially accepted, because the DV they experienced is not properly recognized as an illegal activity. Even if it were, women would still not receive adequate support. It has already been mentioned that the criminal justice system has a certain image of women, as well as biases about crimes. If criminal offenders do not reflect this image and are considered through biases, they will not receive adequate reduction of their punishments. Therefore, it is impossible to say that women are treated generously in any case. Women criminal offenders are treated strictly in cases where the offenders go against the image that the criminal justice system has of them. Reducing or excusing from punishment implies that the person is not required to take responsibility. Therefore, being treated generously implies that there is no responsibility or ability to take responsibility. As the lawyer mentions, women are treated as objects that are controlled. This means that women are not considered people with agency (Morrissey, 2003). If

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the criminal justice system considers women criminal offenders objects without agency, it stands to reason that they will never be required to take responsibility for their actions. When thinking about the offenders responsibility in the case of homicide, it is crucial to consider whether committing homicide was their choice or not. It might be said that the offenders 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 or

choice? Murderous intent was recognized clearly in Case 1. The homicide that was committed with a certain degree of murderous intent can be called her decision. This means the woman made a choice. This does not imply that DV, as a background of the crimes, should not be taken into account: it should. In addition, the punishments that the women criminal offenders received 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 as individuals exercising their agency. At the same time, the women offenders received varying punishments. This is because some women fit the image or are made to fit the image that the criminal justice system has of them. Their character as a woman is more important than the actual crime or the background of the crime.
a

Ideological Treatment of Women Criminal Offenders and Domestic ~olence: Some Reflections
None of the cases consider DV against women properly even though some 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 notions show that there is no understanding about DV in the criminal justice system. The abused receive sympathy as a victim of violence. DV is considered 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

socially accepted
all.

women by the husband/partner as a form of behavior. Mens violence is not questioned at

Moreover, biases are present when considering DV. There are stereotyped ideas that violence only occurs within groups of uneducated people. The instigators of DV are not poorly educated people at all. They have often attained a certain degree of education. There is also an assumption that DV is a problem in low-income families. In truth, DV can happen in any household. In addition, the abusers are considered to be mentally
disordered
men

and, therefore, DV is not considered

in any household. Due to these

to the case studies, it can be seen that the criminal justice has a fixed image of women as good wife and good mother. system Good mothers and good wives symbolize the idea of femininity. This means that the women who follow their husbands, devote themselves to their families, and sacrifice their lives for their families are valued in Japanese society. Therefore, women are supposed to be passive and objects without agency. Women who fit the image that the system has of them receive sympathy, while those who go against this image do not. In the criminal justice system, only the facts and backgrounds of crimes should 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 system considers the crime itself as a masculine project, and is therefore lenient on women criminal offenders. In a patriarchal society, men are dominant and women are subordinated. In this social system, women are required to devote and sacrifice themselves to the family. But even though these images are recognized in each case study, the value of and situation around women in Japanese society has been changing. Simply comparing the situation of women between the oldest case and the 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 changing as well. However, the images of women as good mothers and good wives are still recognized in all cases. In addition, the increase in womens social participation does not imply changing gender roles within the household. Women are still required to be good mothers and good wives at home.

potentially neglected. According

occur

crime that could misconceptions, DV is

a

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The strength of the value inherent in images such as good mother and good wife has been changing over time. However, the fundamental ideology of considering women as legally disabled has not changed. This means that women are still considered as people without agency, and objects to be sympathized with by the criminal justice system. Therefore, images of passivity, vulnerability, and powerlessness are still emphasized. Women criminal offenders are not treated objectively enough in the criminal justice system. Women who go against the ideals inherent in the criminal justice system are criticized, or do not receive enough sympathy. As a result, their sentences tend to be stricter. The prosecutors interviewed mentioned that as the criminal justice system is a male-dominated sphere, there is a trend to treat women generously. Both prosecutors noted that if the number of women in the system were to increase, the number of women imprisoned would increase as well. (These statements are from a personal interview with prosecutors, 13 March 2001.)

Conclusions
Women criminal offenders are treated as vulnerable, in need of protection, and over-victimized; in addition, they are explained by the gender division of labor which is connected to the images of good mother and wife. These images make the judgments of homicide cases lighter, while at the same time de-criminalizing DV Women criminal offenders are considered through images of women as good mothers and wives. If the character of the offender does not go against this image, she tends to be able to avoid strict punishment in the criminal justice system. If the character of the offender contradicts this image of women, she tends to be punished strictly. Their personality as women is taken into account more than the facts of the crime. The images of good mother and good wife imply women who devote themselves to their children and husbands. Women who are obedient and passive are favored in both Japanese society and the criminal justice system. The latter considers women criminal offenders as objects without agency. So if the offender fits the image of women that the criminal justice system has (i.e., no agency), they are prosecuted less and are comparatively less required to take responsibility for their crimes. If a woman does not fit the image that the criminal justice system has, they are seen as being socially deviant.

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only looks at the punishments, many women criminal offenders advantaged because they are less prosecuted and receive lighter punishments. 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 of men. The criminal justice system
are

If one

does not understand women 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 through biases and wrong assumptions, and are misunderstood. By being considered people without agency, women criminal offenders
are categorized as legally disabled. Therefore, they are not required to take responsibility for their crimes. The case studies show that women criminal offenders are ideologically treated in the criminal justice system and DV is not considered a crime. Both of these facts are biases when the women offenders in these case studies are considered. As the lawyer argues, 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 of DV as a background of homicide cases should be taken into account. 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 and the abuser. The human rights of the victims in homicide cases (the abuser in the DV as a background) should be taken into greater account. At the same time, DV must be considered a crime in the criminal justice system.

NOTE
1. In

cannot

Japan, the most common divorce is by mutual agreement. In cases where couples agree on the terms for their separation, and hence cannot file for a divorce by mutual agreement, there are basically three options open to them: (i) divorce by mediation 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 ni kansuru chousa, (Research on Domestic Violence), Tokyo, Japan.

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(2003) White Paper on Gender Equality, The Cabinet Office, Tokyo, Japan. Hanreijihousha. (1975-2001) Hanreijihou No. 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 Violence Against Women in the Family—Possibilities in Asia. (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
The Cabinet Office.
—.

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 Discourse Analysis, Sage Publications,

California.

Tsujimura, Miyoko. (1997) Gender Dominated

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