When the United States began its occupation of Japan in 1945, it transformed the government, installing a constitution that reflected Western ideals of freedom and democracy. Similar to the sovereign in the United Kingdom, Emperor Hirohito became a figurehead with little-to-no power over government proceedings. Furthermore, the Diet would be composed of democratically elected representatives, and Japan’s formerly powerful military would be dissolved into the Self-Defense Forces. 

Despite this new governmental structure, some elements of the previous system were kept in place. Leaders during the war, such as suspected war criminal Nobusuke Kishi, were allowed to stay in government. In addition, the Meiji-era penal code, Keihō, was kept in place; this has given Japan something of a constitutional dilemma, as the penal code contradicts ideals within the new, Westernized constitution.

This dilemma is reflected in Article 175 of the penal code, which covers obscenity. Article 175 states, “A person who distributes, sells or displays in public an obscene document, drawing or other objects shall be punished by imprisonment with work for not more than 2 years, a fine of not more than ¥2,500,000 or a petty fine. The same shall apply to a person who possesses the same for the purpose of sale.”

However, this part of the Japanese penal code raises two issues. First, many argue that Article 175 violates Article 21 of the Constitution, which states, “Freedom of assembly and association, as well as speech, press and all other forms of expression, are guaranteed. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.” The Keihō punishment for the sale of obscene content could be seen as censorship of obscenity and, therefore, a violation of the constitutional rights of the people.

Second, the term “obscene” itself has remained legally vague for decades. This controversy begins with the Chatterley Case, a case concerning D.H. Lawrence’s 1928 novel Lady Chatterley’s Lover and its Japanese translator, Sei Ito. The novel details in graphic detail an affair between an upper-class British woman and her groundskeeper, and as a consequence, the novel was banned in multiple nations. When Ito translated the novel into Japanese, he was tried and found guilty of obscenity. 

The 1957 case of Koyama vs. State subsequently challenged the Ito trial’s guilty verdict. It raised the question of whether Article 175 of the Penal Code contradicts the Constitution, and how obscenity should be defined. The Supreme Court of Japan attempted to define obscenity by stating: “To be obscene, a writing in question must be such that it is harmful to the moral feeling of shame and that it excites and stimulates sexual desire and runs counter to good moral concepts regarding sex.” 

Yet this clarification did not solve much around the definition of obscenity. Phrases such as “moral feeling of shame” and “good moral concepts” are subjective and subject to personal opinion, which would change over time. The vague statute still remains in place, however, and it continues to plague Japanese society. 

In 2014, Megumi Igarashi, popularly known as Rokudenashi-ko (“good-for-nothing-girl”), was arrested for 3D scanning her own genitals and printing the image on a kayak. Igarashi did this in an attempt to challenge the culture of discrimination against the discussion of female genitalia, which she says is overly taboo in Japanese society.  

In 2020, her legal battles ended as the Supreme Court upheld the guilty verdict and fined her ¥400,000. When asked about the decision, Igarashi said the decision was based upon “outdated principles” against “artistic expression.” 

From Article 175 and its wider implications, we can see two major challenges to Japanese society. First, it reflects Japan’s cultural clash between traditional and Western values. Contradicting the country’s Western constitution, the outdated penal code still stubbornly stands. It clearly shows the country’s struggle to reconcile with a uniform national identity. 

The second challenge—and arguably more pressing—is Japan’s cultural expectations of conformity, especially surrounding women. While many citizens of other countries feel they can make many choices of their own, Japan’s government maintains a stricter idea of how its citizens should conduct their lives. 

Obscenity laws should protect people from unwillingly being exposed to repugnant imagery of nudity, mutilation, or worse. However, they shouldn’t go so far as to limit art and individual expression, as they did in the Chatterley and Igarashi cases. By keeping Article 175 of the penal code, Japan greatly inhibits both personal freedom and cultural development. Rescinding its obscenity laws will mean much more for the country than the abolishment of a dated penal code―it will reflect a shift towards a freer future.