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109 chapter 4 Adultery and Gender Equality in Modern Japan, 1868–1948 Harald Fuess This chapter examines how Japanese developed, applied, and contested adultery laws in the period between 1868 and 1948. Perhaps more than any other legislation, laws on adultery were explicitly phrased in gendered terms that clearly differentiated the actions of a husband from those of a wife. This sort of distinction was not unique to Japan, but Japanese adultery laws were created, maintained, and justified at the same time that similar regulations were being criticized and abolished in Western Europe, so these laws offer a particularly useful way to explore how and to what degree the formation of the Japanese legal framework was influenced by foreign models and interacted with local perceptions and social practices. In Japan, as elsewhere, adultery laws often served as an expression of ideal behavior and embodied social­ values that the state was willing to endorse or enforce. Critics and supporters frequently debated adultery laws as if they were not only visible symbols of the double standard regarding men’s and women’s sexual and social behavior but also a sign of a society’s progress and civilization. The definition of adultery seems self-evident, but given the variety of terms Japanese used to name this act, a short overview is in order. Today in Japan when a married person engages in sexual intercourse with a person of the opposite sex the act is generally considered adultery and described as an “illicit relationship” (furin). Before 1948, however, Japanese laws treated only the sexual relationship of a married woman with another man as adultery. During the Meiji period this act was usually referred to as “illicit sex” (kantsū) in legal texts or “illicit sex by a married woman” (yūfukan) in Supreme Court verdicts. According to court cases and social customs, under certain circumstances the behavior of a FOR PERSONAL USE ONLY 110 Harald Fuess husband could also be treated as a form of adultery, but public and legal opinions were divided on this issue. The most common circumstances under which a husband would be considered as committing kantsū were when he took a secondary wife, fathered children with another woman, or squandered family resources by visiting prostitutes. The Chinese character kan in kantsū was also included in the word to describe illicit consensual relationships (wakan) between a man and a woman that were considered socially problematic because they transgressed community norms, which included premarital sexual activities and unions formed without parental approval, as well as customary marriages not registered with offices of the Meiji government. The compound that stood for nonconsensual sexual intercourse involving force—that is, rape—was gōkan. As adultery provisions in criminal and civil legislation evolved in Meiji Japan, the crucial relationship in question was that of a wife and her extramarital lover. In criminal law the key variation was the extent to which the government prosecuted adultery and what kind of punishment it deserved, whereas in civil law the important issues were how adultery influenced the terms of divorce. A sexual double standard existed in both processes: the transgressions of a married woman were subject to scrutiny, while a married man became subject to chastisement only when he had sexual relations with the wife of another man. Although the same basic distinction existed in both types of law, definitions of mitigating circumstances varied, as did the laws’ implementation . As regulations evolved at different times and were drafted by different groups, the gender ideology at work was not always consistent. But by the turn of the twentieth century lawmakers and lawyers agreed that adultery of the wife was a legal problem only if the husband made it one. To do so, however, was his patriarchal privilege. Despite various attempts at revision and reinterpretations to mitigate the gender gap, this basic legal consensus remained in place until the postwar legal reforms. As adultery laws evolved, change did not proceed exclusively in a linear fashion as a story of women’s liberation, nor did all the Western models that were evoked support notions of gender equality. European legal traditions concerning adultery varied from the more unequal Roman law to the more equal canonical law.1 Adultery in modern Japan has received only cursory attention; legal scholars and historians have for the most part neglected the topic of law and gender, and the few studies in Japanese describe the law’s development rather FOR PERSONAL USE ONLY [18.117.183.49] Project...

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