Child sex abuse victims face hurdles seeking redress in court

By Tomohiro Osaki
Japan Times
October 8, 2014

http://www.japantimes.co.jp/news/2014/10/08/national/crime-legal/child-sex-abuse-victims-face-hurdles-seeking-redress-in-court/#.VDU3-vldWSo

Midori Matsushima, who was appointed justice minister on Sept. 3, has been vocal about passing harsher penalties for sex offenders. But experts say the government should be doing more to help the victims of sex crimes.

To many survivors of childhood molestation in Japan, seeking retribution from their abusers has been unimaginably difficult.

By the time they are mentally and financially ready to confront their tormentors, the time for pursuing legal action has often long expired. Unlike in some other countries, courts in Japan do not suspend statutes of limitations or extend them so that sexual abuse victims can file lawsuits when, later in life, they come to grips with their suffering.

In that sense, a recent ruling handed down by the Sapporo High Court is no doubt a rarity. It declared a rape victim in her 40s eligible for ¥20 million in compensation, overturning a lower court decision that the statute of limitations in connection with the abuse she was seeking damages for had expired years earlier.

“The ruling is wonderful,” said her lead lawyer, Toko Teramachi, who asked that her client remain anonymous to protect her privacy.

In Japan, where rapists, for example, often pay out modest sums to compensate their victims in a bid for leniency, restitution of ¥20 million for sexual abuse is virtually unheard of, as it is almost equal to the level paid for cases involving death, Teramachi said.

“We believe the ruling shows the high court’s realization that sexual abuse amounts to what is called ‘murder of one’s soul’ because the victims are often so spiritually damaged that their lives are completely altered thereafter,” the lawyer said.

That said, the ruling is applicable to the woman’s case only and doesn’t serve as a game-changing precedent for similar victims in the future. Rather, experts say, it underlines the need for Japan to consider granting sex abuse victims longer statutes of limitations to make their pursuit of justice easier.

Changing the way accused sex offenders are handled is a hot topic for the fledgling leadership of Justice Minister Midori Matsushima, who has repeatedly pledged to penalize rapists more harshly since taking up the ministry’s top post on Sept. 3.

The rape victim in question, a native of the Hokkaido city of Kushiro, filed a lawsuit against her uncle in April 2011, alleging that he had routinely molested and raped her between 1978 and 1983, from the age of 3 until she was 8.

She “would have preferred to file a criminal complaint” but couldn’t because the statute of limitations for rape only lasts 10 years, Teramachi said. Meanwhile, the Civil Code stipulates that a person forfeits the right to sue somebody 20 years after the damages were inflicted.

In the woman’s case, it is believed she began to suffer post-traumatic stress disorder (PTSD) in 1983 — the last year of her abuse — and depression in 2006, but all the while she was plagued by a host of maladies, ranging from insomnia to eating disorders.

The Kushiro District Court ruled against the woman’s suit in April 2013 on the grounds that her 20-year statute of limitations, assuming her PTSD started in 1983, had run out by the time she sued her accused tormentor in 2011.

The court’s rationale was that 1983, when her PTSD started, is the only possible starting point for the statute because the disorder manifested itself in all the symptoms of psychological and physical illness that afflicted the plaintiff, including her depression, which started in 2006.

The Sapporo High Court rejected this logic. It said PTSD and depression should be treated separately. Although the statute had run out on the PTSD component of her suffering, she could still be compensated for her depression, which started only five years before the suit was filed, the high court said.

The woman was fortunate in the sense that the depression began to manifest itself after so many years, allowing the court flexibility in determining when the statute of limitations in her situation dated from.

Most adult women who seek restitution from their aggressors aren’t granted this flexibility, as they come forward too late.

Lawyer Teramachi said it is virtually impossible for rape victims to pursue legal action against their alleged abusers while they are still minors.

Young children often do not understand what is happening during the time they are being sexually abused — it usually is not until a few years later that they become aware that they were victimized. Many who are struck by this realization suffer humiliation and the misguided notion that they have been “tainted” and often opt to keep their feelings bottled up, Teramachi said.

Coming forward becomes even more difficult if the abuser happens to be a relative, she said. Many child victims refrain from accusing kin of molestation out of fear that doing so will cause irreparable family discord, as was the case with the Kushiro woman.

“Even if they do confide to their parents what they have experienced, the parents sometimes decide to turn a blind eye to what is happening, because to them, the alleged abusers could be their own son, or brother,” Teramachi said.

It is not until well into adulthood that many victims make the correlation between the sexual abuse they suffered and their various physical and mental disorders, and this awareness often does not occur until they are in their 30s, she said.

Japan should learn from other nations in giving sexual abuse victims more leeway to contemplate a lawsuit, experts argue.

In the United States, for example, nearly every state suspends the statute of limitations for civil action when victims are minors. Many states have also adopted additional extensions for cases involving sexual abuse of children, according to the National Conference of State Legislatures.

After being rocked in 2010 by a litany of sexual abuse claims involving members of orders within the Roman Catholic Church, Germany, too, has now extended the start of its statute of limitations on civil child abuse cases from three to 30 years after a victim’s 21st birthday.

“Since the discovery of sex abuses is often delayed, I think Japan should introduce special exemptions to the statutes of limitations like (the U.S and Germany) did. It’s very problematic that you have to ask for the courts’ judgment just to figure out when (a statute) started,” said Katsumi Matsumoto, a professor of civil law studies at Ritsumeikan University in Kyoto.

Minister Matsushima has repeatedly vowed to stiffen the penalties for sexual offenders, criticizing the judiciary for belittling the gravity of rape.

Under current law, she said, rapists who either injured or killed their victims can get away with a minimum sentence of five years, whereas thieves who injure their victims face a minimum sentence of six years. Merely a month into her appointment, Matsushima is already on her way to set up a panel of experts tasked with debating harsher punishment for sexual offenders.

Although hailing such comments as a major shift in the government’s stance, in that it will bolster how the nation heeds the cries of sexual abuse victims if reforms are carried out, experts emphasize that toughening penalties alone misses the point.

“Criminal proceedings are essentially about authorities punishing criminals and restoring peace to society. They aren’t much about the victims themselves,” Matsumoto of Ritsumeikan University said.

“Rather than focusing on punishing the offenders, more should be done to facilitate victims’ rights to claim compensation in civil lawsuits, such as by addressing the problem of (statutes of limitations),” Matsumoto said.