>HOME >2005

The Choice of Abortion or Birth
Among Women Pregnant as a Result of Rape in Japan

(配布資料)
Risa Koyake*
 Graduate School, Ritsumeikan University
14th World Congress of Criminology, University of Pennsylvania, Philadelphia 2005/08/10 

*Please contact the author before you cite this paper.

Introduction
 This report deals with women in Japan who are pregnant as a result of rape. However, discussion in this paper will be limited to rapes committed by persons unknown to the victims 1 .
 Pregnancy leaves women with two choices: to give birth or not. The attitudes of women concerning these two options can be classified in the following way:
1)Strongly desires to give birth
2)Passively desires to give birth due to lack of active desire for abortion
3)Passively desires abortion due to lack of active desire to give birth
4)Strongly desires abortion

 The same applies to pregnancy resulting from rape. However, women in Japan who express the first two choices above face difficulty in achieving their choice.
 Japan has few support systems for rape victims, whether they become pregnant or not. Furthermore, as I will discuss below, perpetrators are actually never called upon to take responsibility for their actions.
 But despite the lack of support systems for female rape victims in Japan, abortion is legally permitted in case of pregnancy resulting from rape, and rape victims who have become pregnant and who express the last two choices can choose not to give birth. On the other hand, it is difficult for rape victims to choose to give birth, mainly because of the almost total lack of support in Japan for rape victims who give birth. The structure for supporting abortion for rape victims is gradually improving, but little thought is given to supporting victims who intend to give birth, and future prospects for this are slim as well. In this paper, I will discuss why this is so and review the current state of abortion in Japan and support systems for rape victims, based on interviews with victim support groups and on my own experience as a rape victim supporter.


1. Legal Status of Abortion in Japan
 First: the legal position of abortion in cases of pregnancy due to rape.
In Japan, abortion is legally permitted in the circumstances prescribed by the Maternal Protection Law. Though the Criminal Code revised in 1907 still considers abortion in principle as an illegal activity subject to criminal penalties, the Code permits abortion abiding by the Maternal Protection Law.
 The forerunner of the Material Protection Law is the Eugenics Protection Law adopted in 1948, which made abortion legal under certain conditions 2 . This law permits abortion in cases of rape, a measure introduced in the aftermath of World War II when many women became pregnant after being raped. Although the primary intention of this law when it was introduced was not to protect the human rights of female victims, some women who became pregnant after being raped were helped as a result of this law. In other words, legally permitting abortion in some aspects ultimately protects the victims' human rights.
 The Eugenics Protection Law was revised as the Maternal Protection Law in 1996. Section 3, Article 14 of this law, concerning abortion, is as follows:

Article 14
 1.A physician designated by the Medical Association being a shadan-houjin (incorporated association) incorporated in prefectures (hereinafter referred to as a "designated physician") shall be authorized to perform artificial interruption of pregnancy to a person falling under any of the following respective items, after obtaining the consent of the person in question and the spouse thereof.
 (1)A mother whose health may be seriously affected by continuation of pregnancy or by delivery due to physical or economic reasons
 (2)The person in question having been impregnated due to fornication by violence or threat or while incapable of resisting or refusing.
 2.With reference to the consent under the preceding paragraph, the sole consent of the person in question shall suffice if the spouse is not known, or if the spouse's intention cannot be ascertained, or if no spouse remains after conception.

Article 14, paragraph 1(2) of the Maternal Protection Law is a portion of the Eugenics Protection Law that was carried over unchanged. Thus, in Japan, abortion is legal in the several circumstances, including the case of pregnancy resulting from rape.



 Second: The number of reported abortion due to rape and that of reported cases of rape
As is seen above, abortion is available subject to several conditions in Japan today. Article 14, paragraph 1(1) is cited in most cases 3 . The Health, Labour and Welfare Ministry's "Report on Examples of Public Health Administration" said that in the fiscal year 2002 (from April 2002 to March 2003) there were 145 abortions due to rape and 534 in the fiscal year 2003 (from April 2003 to March 2004) 4 , while National Police Agency statistics for known cases of rape were 2,357 in the fiscal year 2002 and 2,472 in the fiscal year 2003. Some women may invoke Article 14, paragraph 1(1) when having an abortion, if they do not wish it to be known that they were raped. In the course of offering support to women victims, I also observed a tendency among them of wanting to cite economic reasons for having an abortion. It is likely that the figures for abortions after rapes are considerably higher than those reported in government statistics.


2. Legal Status of Responsibility of Rape Perpetrators in Japan
 Next, I would like to discuss issues dealing with assigning responsibility to rape perpetrators, from the perspective of civil litigation matters, such as monetary damages.
 A woman who wishes to have her assailant pay for abortion expenses may bring suit for damages in civil court and use money from the total damages awarded to pay for the abortion. But suing an assailant in a court case is a great burden for women victims, and many of them give up and suffer in silence. Furthermore, even if a woman did bring suit against her assailant, in the end the woman must come up with the money herself, since obtaining a judgment takes time.
 If a woman decides to sue the perpetrator for child support, there must first be a legal parent-child relationship between the child and the perpetrator, and for this to be established the perpetrator must legally recognize the child as his. If the perpetrator agrees, DNA testing can be carried out, and if he is made to recognize the child as his own, the female victim can ask for child support. But if the perpetrator is convicted of rape in criminal court and sent to jail, or if he does not have the economic wherewithal, as is often the case, he will be unable to pay (or will get away with not paying) child support. Therefore, it is practically impossible to obtain child support from perpetrators. These circumstances make it very difficult to force the perpetrator to live up to his responsibilities as a parent, which is an economic blow to the pregnant rape victim. Some type of support system is needed to deal with this situation.


3. Support Systems for Women Rape Victims in Japan
 In Japan, support systems for women rape victims are very limited. Lately, some nongovernmental crime victim support organizations have begun offering support for abortions, by, for example, providing information on clinics where abortions may be obtained safely, within the framework of support for crime victims. But support is still insufficient: for example, there is no financial support at all for women victims who cannot come up with money quickly to pay for an abortion to end an unplanned pregnancy. The situation regarding support for childbirth is even worse. There is no support for rape victims giving birth. It is no exaggeration to say that the only human rights protection that these female victims have is that abortions are legal-even though the aim of this law is not primarily to protect these women's human rights.
 But when I interviewed members of a non-profit organization (NPO) promoting adoption in 2004, I discovered that this group supported women rape victims. This NPO did not specialize in support for female victims of sex crimes, but a few of the women it was supporting had given birth. Since this NPO promotes adoptions, it offers help and advice to pregnant women who, for one reason or another, wish to give their child up for adoption. The NPO staff member interviewed related that "about one-third of the women who initially say they will give up their baby for adoption end up keeping and raising the child themselves." But this person also said "all the female rape victims who came to us for help gave up their babies; none of them raised the children themselves."
 This shows that there are no systems to support rape victims choosing childbirth, and that organizations involved in adoptions act as substitutes. Under these circumstances, it is difficult for such women to choose childbirth.


4. Need for a System Supporting Childbirth by Rape Victims
 The fundamental premise to consider the whole problem is to understand that women pregnant as a result of rape do not wish to be pregnant. As is well known, women are deeply wounded by rape and it is in this forced circumstance that they must choose between abortion and childbirth.
 As has been described so far, rape victims can obtain abortions. But avoiding an abortion-passive desire for childbirth, the second choice listed at the beginning of this paper-may not always be possible. The reason is the lack of support for having the child. Thus, even if the woman does not actively desire an abortion, she may still choose that option. This, however, cannot be said to guarantee such women's reproductive choice.
 According to the staff at the NPO that I interviewed, "we get more calls asking for advice, in fact, from rape victims who find themselves unable to choose between abortion or childbirth, than from women who are clearly willing to have the child from the start." The staff member related that one woman contacted them, saying "I fear that I might be inclined to give birth as I continue to go for regular check-ups." I do not know how many times this woman had gone for check-ups before calling the NPO, but I think that she was calling for advice because she felt she might be inclined to give birth.
 One of the reasons why she thought she might be inclined to give birth may be her experiences in hospital. In Japan, there are no clinics specializing in abortions. Pregnant women go to the same facilities, for both childbirth and abortions. This system certainly pays no heed to women victims, who did not wish to become pregnant. Some victims may also feel guilty about undergoing an abortion. This is clearly secondary damage (secondary violence), and measures are needed to ensure that victims will not feel they acted wrongly in having an abortion 5 . (I am not saying here that there should be clinics specializing in abortions.) Some victims may also waver about having an abortion after seeing their fetus or other women's babies-although hospitals or doctor's offices are not the only places where they are likely to see babies.
 It is not clear what causes rape victims to hesitate to have an abortion today, but some of them do. Whatever the reason, some of those women cannot actively desire an abortion. If one solution to this dilemma is to have the child, they need the necessary support to do so. This support is also necessary for women who were raped but were late to realize that they were pregnant and who had no option left but to give birth. But even if such a support system existed, however, I do not believe that all victims not actively desiring an abortion would choose childbirth.
 Interviews with the NPO turned up a number of cases of women who chose childbirth, passively perhaps, on condition that the child be offered for adoption. Giving women the option of avoiding having to raise a child would increase their choices and could enable them to avoid undergoing an abortion they do not actively desire. This indicates a possible direction for a support system for rape victims.
 The problem is that private organizations like the NPO described here are very scarce. As a result in my role as a supporter of rape victims I am unable to easily encourage them to choose childbirth. Another factor is that information is not readily available, making it difficult for ordinary women, and for rape victims, to learn about such support organizations. In these circumstances, even women who would like to avoid having an abortion tend to end up choosing exactly that option.
 It is thus clear that some rape victims who become pregnant hesitate to have an abortion or waver about their decision. To guarantee these women's reproductive choice, a support system for childbirth is urgently needed.


5. Issues for the Future
 As this report has described, not all rape victims necessarily strongly desire abortions. Those women, who should not have been forced to choose between abortion or childbirth to begin with, should naturally have the right to select the best possible alternative. In order to guarantee their human rights, they should be afforded the widest possible choice of options regarding whether to have the child or not. It is essential, of course, that abortion be legal for women with unwanted pregnancies as a result of rape, to guarantee their human rights. Abortion is one way of doing so, and it is a necessary right. But support for childbirth also needs to be considered, from the perspective of guaranteeing rape victims' reproductive choice.

 As described above, the interviews carried out by me in 2004 pointed to the possibility of childbirth without choosing to raise the child, or in other words, the possibility of passively avoiding abortion. Accordingly, one way of protecting reproductive choice for women pregnant as a result of rape is to consider childbirth and child-rearing separately, for example, through adoption or other means, and to create such a system and improve its organization.
 In 2004, I visited Americans' Pregnancy Helpline (APH), a Texas-based NPO that offers telephone counseling for women with unwanted pregnancies. APH staff members gave me information about pregnancy centers, maternity homes and other such institutions with admitting facilities. These centers enable women with unwanted pregnancies to continue their pregnancies to term; APH staff related that some rape victims had also stayed in these centers and given birth. Japan needs such facilities, where rape victims can continue their pregnancies and give birth.
 It should be also debated what legal provisions and systems would make it easier for women to have rape perpetrators fulfill their responsibilities as fathers. If a rape victim gives birth and puts the child up for adoption, the adoptive parents pay to raise the child. Is this right? This means that rape perpetrators escape all responsibility. And, under the current law in Japan, if a rape victim who has a child and raises it herself attempts to force the father to pay child support, the father must legally acknowledge the child voluntarily. Such a law is very problematic because it places a great burden on women victims and their children, and because in consequence the perpetrator is, in fact absolved from responsibility in civil terms (or as a parent).

Conclusion
 Rape victims must never be forced to abort. Neither must they be forced to give birth. Women who become pregnant as a result of rape have the right to choose abortion or childbirth.
 We must also reconfirm that abortion does not mark the end of the rape-related problems (particularly the emotional scars) that female victims cannot help having, and that childbirth will not end the problems with rape, problems which they have been forced to experience. That is why we have to consider how to care for rape victims when and after they decide, and after they undergo abortion or give birth. We have to consider also the question of who will bring up the newborn babies 6 .

Notes
1 The Tokyo Rape Crisis Center, Japan's first nongovernmental volunteer group for rape counseling, was established in 1983. According to the Center, a total of 638 calls (including 241 calls where callers hung up without speaking) were received between January and December 2004. Of those calls, 284 had to do with rape, 102 concerned other matters, and 11 were prank calls. In terms of the victim's relationship with the perpetrator, in 61% of cases the perpetrator was known to the victim, in 9% the victim did not know the perpetrator and in 30% the victim did not tell whether the perpetrator was known or unknown to the victim. Assaults took place indoors (43%) and outdoors (7%); in 50% of cases, the victim did not tell where the assault took place.
2 Article 14 of the Eugenics Protection Law reads as follows:
 1.A physician designated by the Medical Association being a shadan-houjin (incorporated association) incorporated in prefectures, (hereinafter referred to as a "designated physician") shall be authorized to perform artificial interruption of pregnancy to a person falling under any of the following respective items, after obtaining the consent of the person in question and the spouse thereof.
 (1)The person in question or the spouse thereof suffering from psychosis, mental deficiency, psychopathies, hereditary physical disease, or hereditary malformation;
 (2)A blood relative within the 4th degree of consanguinity of the person in question or the spouse thereof suffering from psychosis, mental deficiency, psychopathies, hereditary physical disease, or hereditary malformation;
 (3)The person in question or the spouse thereof suffering from leprosy;
 (4)A mother whose health may be seriously affected by continuation of pregnancy or by delivery due to physical or economic reasons]
 (5)The person in question having been impregnated due to fornication by violence or threat or while incapable of resisting or refusing.
 2.With reference to the consent under the preceding paragraph, the sole consent of the person in question shall suffice if the spouse is not known, or if the spouse's intention cannot be ascertained, or if no spouse remains after conception.
 3.If the person in question who undergoes the operation for artificial interruption of pregnancy suffers from psychosis or mental deficiency, consent under guardianship obligation under the provisions of Article 20 of the Mental Health Law (cases where the guardian, spouse, person with parental authority, or the person with obligation to protect another becomes the person under guardianship obligation), or of Article 21 of said Law (cases where the mayor of the city, town or village becomes the person under guardianship obligation) may be deemed to be the consent of the person in question.
3 The Health, Labour and Welfare Ministry's "Report on Examples of Public Health Administration" said that in the fiscal year 2002 (from April 2002 to March 2003) there were 329,326 abortions in total and 328,992 abortion due to physical or economic reasons [Article 14, paragraph 1(1)]. And, in the fiscal year 2003 (from April 2003 to March 2004) there were 319,831 abortions in total and 319,048 abortion due to physical or economic reasons.
4 The Maternal Protection Law requires doctors to carry out fertility treatment or abortions to report.
Article 25 (Reporting)
If a doctor or designated doctor carries out fertility treatment or artificially terminates a pregnancy, he/she must compile a report on the results of procedures carried out in a particular month by the tenth day of the following month, note the reason, and submit the report to the prefectural authorities.
5 For example, arrangements could be made to deal with victims in a separate area where they are not in contact with pregnant women or babies and children.
6 I thank Paul Dumouchel, Shinya Tateiwa, Yoko Matsubara for helpful comments.

UP:20050821 http://www.ritsumei.ac.jp/acd/gr/gsce/2005/0810kr.htm
小宅理沙 

TOP HOME(http://www.ritsumei.ac.jp/acd/gr/gsce/)