- Sexual Violence and the Law in Japan
"For the professors in the academy, for the humanities generally, misery is more amenable to analysis: happiness is a harder nut to crack." So muses neurosurgeon Henry Perowne, the central protagonist in Ian McEwan's latest novel, Saturday.1 If Perowne had read Catherine Burns's new book, Sexual Violence and the Law in Japan, he might think he had ample support for his [End Page 447] view. Burns's subject—rape specifically and sexual violence generally—is misery at its darkest. Her central claims are no brighter: victims of sexual violence in Japan can expect to be blamed for their own rapes unless their stories can fall within a narrowly defined template of credibility. Offered as empirical proof, 20 rape cases analyzed in detail and furnishing the heart of the book (chapters four, five, and six) make for bleak and disturbing reading.
However, Burns's important book does not deserve Perowne's (fictional) criticism. Sexual Violence and the Law in Japan is not a study of misery, but a book of light and shade. True, its main concern is to expose the institutionalized injustices women face as victims of sexual violence. But the book also devotes itself to feminist strategies to subvert the inherent patriarchy of the law. Thus, chapter seven finds comparative lessons in the civil law on sexual harassment—a minor success, Burns notes, in terms of reorienting community attitudes to sexual violence in the workplace—for improving the criminal law of rape and sexual assault. Further, although her focus is on the "extra-legal factors on judicial decision-making" (p. xvii), Burns finds potential solutions within the fabric of the law itself. Unlike some feminist scholars who insist that law has no promise for generating social change and justice for women, Burns expresses more (albeit still guarded) optimism:
The law is not monolithic, undimensional or undifferentiated but, rather, a fractured site containing contradictions and gaps that may be exploited. In other words, there is space for alternative argument and resistance and, thus, law contains the potential to attain at least small, concrete gains for particular women. As such, the law is not an area feminists can afford to ignore.(p. 132)
Even with its focus on the dark side of Japanese life, Burns's book sheds important new light on gender and sexuality in Japan. As Burns artfully argues in the Preface, "abnormal" sexual violence is still a lens through which we can extrapolate understandings about "normal" gender and sexual relations in Japan. She is convincing when she dismisses concerns that concentrating on sexual violence is somehow odd or misleading; rather, she submits, it discloses real insights into the way Japanese society discursively constructs and maintains normative ideas about masculinity and femininity (p. xviii).
So what are these insights? The story of rape in Japan, according to Burns, is precisely that: a story, or, more accurately, a series of stories. Burns's thesis is that narrative theory can help us unlock why some rape cases are successfully prosecuted and others not. Her conclusion is that rape cases that go according to "script" are more likely to result in convictions; those that do not will be deemed unusual or unnatural and therefore strain credibility. Playfully, Burns makes the most of her narrative method by assuming the role of storyteller herself, hooking the reader into her book with [End Page 448] a short case study in the Preface that illustrates the types of questions she will address in the substantive chapters of her book. This approach is reminiscent of the writing style of Minoru Nakazato and J. Mark Ramseyer in Japanese Law: An Economic Approach2 in which the authors begin each chapter with wonderful vignettes to entice the reader into the substance of their argument. Whereas Nakazato and Ramseyer are entertaining and often hilarious, Burns is more restrained; still, it is a nice touch.
In the first two substantive chapters, Burns explains her approach and methods. In chapter one, she justifies the narrative approach to her subject...