Child Abuse: A Domestic Matter
in need of International Attention
The Situation in Japan
Lisa A. Prevenslik-Takeda,
LL.M.
The Phenomenon of Child Abuse
Child abuse is the recent terminology
for a tragic reality present in all societies everywhere. The
tragic nature of this phenomenon is that it occurs against societies’ most vulnerable members who are largely if not
completely dependent on their caretakers and who simply do not
have the vocabulary or language to express ? even if they could
understand it all ? the facts of their abuse.
With the exception of warfare, self-defense,
and the often-necessary use of force by the police, no human
interactions other than adult-child interactions carry such clear
social support of the unilateral use of physical punishment by
one party on another. Similar behavior between, for example,
an employer and an employee carry clear proscriptions and can
readily provide bases for civil and/or criminal actions brought
by the victim. Children, it seems, have been singled out from
among all groups...as the recipients of such treatment.
Most societies sanction the right of parents
or guardians of children to discipline and punish children. These
acts in and of themselves are understood to be carried out in
the best interests of the child with a view to their education
and sound upbringing as members of good functioning and peaceful
societies. Child abuse, however, deviates from this understanding.
Child abuse has come to be defined as the maltreatment of a child
by his or her primary and legal caretaker ? commonly his or her
mother, father or guardian. Such maltreatment has four basic
and overlapping appearances i.e. physical abuse, sexual abuse,
emotional abuse and neglect.
Child abuse has been recognized internationally
as an act, which should be outlawed by States. In 1989, the UN
Convention on the Rights was adopted by the UN General Assembly.
This Convention, which has been signed and ratified by an overwhelmingly
large number of States, obliges States parties to “use their best efforts to ensure recognition of
the principle that both parents have common responsibilities
for the upbringing and development of the child” to “render appropriate
assistance to parents and legal guardians in the performance
of their child rearing responsibilities”
and to “ensure the development of
institutions, facilities and services for the care of children.” Moreover, under the Convention, States Parties
are required to “take all appropriate
legislative, administrative, social and educational measures
to protect the child from all forms of physical or mental violence,
injury or abuse or negligent treatment, maltreatment or exploitation,
including sexual abuse, while in the care of parent(s), legal
guardian(s) or any other person who has the care of the child.” Further, the Convention stipulates that “Such protective measures should, as appropriate,
include effective procedures for the establishment of social
programmes to provide necessary support for the child and for
those who have the care of the child, as well as for other forms
of prevention and for identification, reporting, referral, investigation,
treatment and follow-up of instances of child maltreatment described
heretofore, and, as appropriate, for judicial involvement.” Importantly also, the Convention provides for
special protection and assistance by the State in cases where
a child is “temporarily or permanently
deprived of his or her family environment”
as is common to safeguard the child in severe child abuse cases.
With the increase in the number of child
abuse cases which have come to light over the past twenty years
and the subsequent mounting jurisprudence on the subject, the
distinction between permissible physical or other punishment
of children and non―permissible maltreatment has gained some
clarity In a number of countries, child abuse has gained legal
definition and has become a criminal offence.
There is absolutely no doubt that Child
Abuse is a socially abhorrent act or series of acts which harms
children, violates their integrity, and degrades them. It is
cruel and in some cases inhuman. We have learned though that
child abuse offenders are, in many cases, victims of poor social
and economic conditions common to modern, nuclear families in
city environments. They are often divorced, separated, remarried
or otherwise. We have also learned that a large number of offenders,
especially those responsible for some of the worst cases, suffer
themselves from psychological and neurological illnesses, and
from drug addiction and alcoholism.
We are learning that the damage suffered
by abused children is immeasurable. Young children are often
resilient to physical injury but the psychological pain suffered
can be a lifetime ordeal. While the effects of child abuse vary
from case to case, we know that they may be prone to juvenile
delinquency, violent crime and abuse. For society the, leaving
children unprotected in an abusive living environment, will mean
not only losses for the sound development of society but a possible
threat to that society’s peace and
security.
Thus, it is very important to examine
the situation of child abuse in each country, define the social/legal
framework for dealing with child abuse, and to pinpoint successful,
unsuccessful and needed efforts to prevent child abuse in the
immediate and distant future.
This paper examines the situation of child
abuse in Japan. It is an introductory study to the issue and
possibly may serve as starting point for a greater comparative
research work on the situations of child abuse in countries throughout
the Asia-Pacific Region. A research project of this nature might
be taken up by the Asia Crime Prevention Foundation.
The Situation of Child Abuse in Japan
Cases of child abuse by parents have been
increasing rapidly, from 1,001 cases in 1990 to 1,961 cases in
1994 to 6,932 cases in 1998 ? a 30% increase from 1990. .These
figures represent those abuse cases reported to Child Guidance
centers. However, if the number of cases reported to other governmental
and non-governmental bodies is added, it is estimated that the
total number of cases was at least 4,900. Further, because child
abuse reporting is not made mandatory the actual number of cases
may be assumed to be much higher.
The legal framework to combat child
abuse in Japan
At present, Japan does not have a specific
law attached to its criminal legislation or enacted otherwise,
which penalizes the act of child abuse. Dealing with cases of
child abuse then falls under two other bodies of law. The only
specific reference to child abuse appears in the Articles 27
and 28 of the Child Welfare Law, which provides for the protection
of a child in cases where s/he has suffered abuse at the hand
of his parent or guardian. This law, however, aims to provide
protection, not to penalize the offence of child abuse itself.
Persons suspected of child abuse may be prosecuted under the
Japanese criminal law under provisions relevant to their offences
such as assault, battery, neglect, and abandonment and in the
worst cases, homicide. Accordingly, Japanese law does not penalize
the offence of child abuse specifically and, mutates mutandis,
does not define the offence.
Japan also does not have a mandatory reporting
law regarding child abuse cases. Although article 25 of the Child
Welfare Law does stipulate that anybody suspecting child abuse
is to make a report to a welfare office, a penalty for not reporting
is not stipulated. Further, as a definition of child abuse is
not provided in this or any other Japanese law, people suspecting
child abuse may not be sure that the case is that which should
or should not be reported. This last point is of particular concern
in many societies, including Japan, where the parental power
over children is legally proscribed in legislation and case law
and where the right to discipline and punish is guaranteed. Article
822 of the Japanese Civil Code stipulates that “A person who exercises parental power can, in
so far as it is necessary, personally chastise his or her child...” The limits of chastisement are not, however,
spelled out under this law. Generally, physical punishment, which
does not cause injury, is understood to be permitted under this
provision. However, a close examination of Japanese case law
regarding this provision needs to undertaken.
Criminal Law cases
Generally, when a parent or guardian abuses
a child, the police on the suspicion of violence or injury handle
the case. However, there are many problems in trying child abuse
cases under criminal law. One of the main problems is evidence.
Almost all incidences of child abuse take place in private where
a third party is unable to directly witness the act. In many
cases, the testimony of the child is essential for prosecution.
However, here again difficulty arises in terms of the welfare
of the child. Interrogating repeatedly children about the details
of their abuse can be traumatic and cause irreparable emotional
injuries. Further problems arise when a parent or guardian offender
is actually convicted. If the offender is imprisoned for a certain
period of time, then an alternative guardian for the child must
be appointed. The parent-child relationship usually worsens during
the term of imprisonment, and it is commonly feared that once
the offender is released and regains guardianship over the child,
the abuse will resume or escalate. While a new, permanent guardian
of the child may be appointed permanently once the offender is
sentenced, in Japan this would be difficult as blood relations
are not easily severed. Therefore, criminal prosecution of child
abuse offenders is not seen as positive solutions to a child
abuse case.
Cases under Article 28,Child Welfare
Law
In a review of Japanese jurisprudence
regarding child abuse cases brought under article 28 of the Child
Welfare Law, a number of understandings by judges and criminal
justice professionals can be discerned. First, in Japan, in any
case involving child abuse, the first priority is given to child
protection. Once a child has been removed from an abusive environment
and placed under State protection in an institution, then, and
depending on the severity of the case and the type of abuse incurred,
can criminal litigation proceed.
In 1997, Family Court judge Yuko Kamai
published a paper entitled Concerning Family Court Recognition
of Cases under Article 28(1)1 of the Child Welfare Law. In
this article, she analyzes 51 cases brought before the Family
Court between 1994-96. Her analysis, although not completely
accepted by legal professionals, is important, as it is the first
substantial attempt to view the application of this legal provision
by the Japanese judiciary. Some of her conclusions are as follows.
First, the number of cases brought under
article 28 is exceptionally few. Even those cases which could
be adjudged positively, the judgements in most cases did not
affirm incidence of child abuse but rather on the facts of each
case, determined either that there was a violation of the child’s welfare or that the situation demanded that
child welfare organizations exercise their powers in accordance
with Article 28.
The reasons why so few child abuse cases
are litigated under this article ? even when injuries to the
child were apparent ? are (1) that the parents or guardians of
the child strongly denied allegations of abuse and affirmed their
rights as parents to discipline or punish their child in the
way they saw fi; (2) that the child negated or was unable to
state that his or her injuries were incurred by parental/guardian
abuse; (3) that child abuse itself was difficult to prove: Parents
insisted that their actions were not violent but acts of physical
punishment or that the injuries were caused not by them by bothers,
by the child himself or herself and/or by others..
In terms of understanding child abuse,
Japanese Family Courts, in deciding cases brought under Article
28 of the Child Welfare Law, maintain a general consensus that
child abuse exists in four, often overlapping, domains: Physical
Abuse; Sexual Abuse; Psychological or Emotional Abuse; and Neglect.
With limited direct evidence, the Family
Court largely relies on circumstantial evidence to determine
an abuse situation where the State needs to provide protection
for a child. Serious physical violence is usually determined
when the child has suffered psychological and physical damage,
when the relationship between the parent and the child has dramatically
deteriorated, when the parent or guardian is viewed to have a
strong tendency toward using physical violence, and when the
parents or guardian appears unable to control his or her use
of physical violence.
All cases, of course, do not involve serious
physical violence. Many involve other forms of violence including
sexual abuse and emotional abuse. Acts of omission as well in
terms of neglect can be heinous. Other criteria used by the courts
to adjudge the need for State protection under Article 28 include,
but are not limited to the following:
3. The Types and Severity of abuse
A: Methods:
B. Type of injury
C. Duration
D. Hospitalization
Loss of Parental/ Guardian Custody
In Japan, there is no mandatory reporting
law regarding child abuse cases. However, there is a clause in
the Child Welfare Law which stipulates that “the person who identifies a child whose guardian
is found to be unfit to take care of the child must notify the
Child Guidance Center to that effect.” In cases where a guardian serves as a person
of parental authority abuses or fails to take care of a child,
or where the child's welfare is injured by placing him/her under
the care and custody of the guardian, the Child Guidance Center
may send the child to an infant home or a protective institution.
As an ex post facto measure, a prefectural governor may give
orders and require a report on the protection of the child from
the head of institutions. If a guardian disagrees with the child's
admission to the institution, the governor may take such measures
with the Family Court's approval. The Civil Code of Japan stipulates
that the Family Court may remove a guardian from parental authority
if he/she abuses the parental rights. (The head of the Child
Guidance Center may also claim for adjudication for the loss
of such a guardian's parental authority.) If there has been misconduct
by the guardian, the Family Court may discharge him/her from
the position of tutor.
Recovery and rehabilitation of abused
children
Child Guidance Centers
Under the Child Welfare Law, Child Guidance
Centers give temporary care to abused children until they return
to child welfare facilities or their families. A Child Guidance
Center consists of a chief child counselor, a child welfare officer
and a psychoanalyst in charge of providing temporary care to
children. They work to protect children from abuse and exploitation
by sending them to infant homes and protective institutions according
to the children's conditions and family environments.
As provided for in the Child Welfare Law,
a child without a guardian or a child whose guardian is regarded
as inappropriate to take care and custody of him/her is subject
to temporary protection at the Child Guidance Center. At the
same time, if necessary, the child is transferred to an infant
home or a protective institution. A foster-family system is also
established under the provisions of the Child Welfare Law.
Infant homes
Infant homes are institutions for accommodating
and rearing infants less than 12 months old in need of protection.
As infants generally have little resistance to illness, infant
homes give due attention to medical care in the operation of
facilities. Therefore, doctors and nurses are stationed, paying
special attention to the health care of infants.
On 1 March 1995, the number of infant
homes totaled 117 and the total capacity amounted to 3,831 infants;
2,752 infants were being taken care of as of that date.
Protective
institutions
Protective institutions are established
for the purpose of protecting children without guardians, abused
children, and others in need of protection on environmental grounds,
excluding infants. Recent trends show that more children who
are not offered proper care even if they do have parents are
entering protective institutions. Entrance of children due to
the disappearance, divorce and long-term illness of parents is
on the increase, in addition to those for parental neglect and
child abuse
Foster-parents.
Foster-parents are volunteers, with the
recognition of the mayor, who wish to take care at their homes
of a child who either has no guardian or whose guardian is deemed
to be inappropriate to take care of the child. Although nationwide
campaigns are being launched to seek foster-parents every year
to promote and encourage the idea of becoming a foster-parent,
the number of foster-parents and foster-children have both been
declining drastically. This has resulted from the reluctance
of guardians to entrust children to others' care owing to the
confusion with adoption, and from the low interest among the
general public because of the common belief that one must be
an extraordinary philanthropist to become a foster-parent
Measures against child abuse
Urban in-home family support scheme
The Japanese government introduced its
“Urban in-home family support scheme” in 1994 in order to deal with family worries
about child-rearing and problems such as child maltreatment.
Under this scheme, private facilities offer counseling along
with prompt and in-home support is available to child caretakers.
The scheme seeks, inter alia, to protect children's rights
and contribute to sound child-rearing. As of 1995, the scheme
had been implemented in 20 private facilities.
Model project for the management of
child abuse
In 1996, the government launched a model
project for the management of child abuse cases, with the aim
of constructing a network against child abuse for the prompt
identification of, the swift response against and the constant
follow-up of child abuse cases. Not only does it seek to detect
cases of child abuse, but it also tackles tough cases in liaison
with a team consisting of welfare officers, doctors, lawyers
and police.
Role of civil liberties organs
If it is found that a child is assaulted
or abused and there is a suspicion that his/her human rights
are being violated, the civil liberties organs initiate an investigation
of the matter as a case involving infringement upon human rights.
If findings prove that the infringement is true, the organ makes
the violator realize his/her fault by explaining it to the parties,
with the aim of eliminating the infringement on human rights
and preventing recidivism. If necessary, the civil liberties
organs report the matter to Child Guidance Centers to protect
the child in concert.
Role of Police
The police give advice to juveniles, parents
and other interested persons as part of their activities to prevent
juvenile delinquency and enhance child welfare. In 1995, 178
incidents of child abuse were brought to the police for advice.
If an incident of child abuse is identified through such consultation
activities and other police practices, the police handle it as
a case subject to law. The police endeavor to protect abused
children even when the abuse cannot be handled as a formal case
by cooperating with relevant institutions: for instance, the
police notify the Child Guidance Center and give temporary protection
to the child upon the Center’s request
if it is found to be inappropriate to leave the child in the
guardian's custody.
Child Guidance Center (175 centers,
as of 1995).
Every prefectural government is obliged
to establish Child Guidance Centers, which offer advisory services
to families and other persons on various problems concerning
children. For people who cannot visit, Centers make staff calls
at home and provide telephone consultation services such as "dial
110 (emergency) for children and families" supported by
the Experts' Team for Children and Families.
Family and Children's Guidance Room
(1,044 rooms, as of 1994).
Family and Children's Guidance Rooms are
located in welfare administrative offices, which are familiar
to residents. In the Rooms, family consultants and social welfare
managers are posted to provide counsel/guidance services for
various child-rearing problems in ordinary families, working
to identify and instruct troubled children in earlier stages.
Child Commissioner (210,000 commissioners
as of 1994).
Posted in every city, town and village,
Commissioners work to understand children's lives and their environmental
conditions and engage in relief activities related to child protection,
health, welfare and so forth.
Public Awareness
The Government intends to encourage public
relations activities to raise public awareness of the issue as
well as consolidate various measures to prevent child abuse.
What is needed?
At the UN, the Japanese government submitted
its first report to the Committee on the Rights of the Child
regarding its efforts to implement the provisions of the Convention
on the Rights of the Child, which the government ratified in
1991. In this report, the government explained how it was succeeding
in counter child abuse. Upon reviewing the Japan report and hearing
the reports of NGOs given additionally, the Committee expressed,
in its Concluding Observations, its concern about the increase
of child abuse and ill-treatment, including sexual abuse, within
the family. The Committee also noted its concern that “insufficient measures have been taken to ensure
that all cases of abuse and ill-treatment of children are properly
investigated, sanctions applied to perpetrators and publicity
given to decisions taken” and that.
“Insufficient measures taken to ensure
the early identification, protection and rehabilitation of abused
children.” Accordingly, it recommended
“that the State party collect detailed
information and data regarding cases of child abuse and ill-treatment,
including sexual abuse, within the family.”
The Committee also recommended that “cases
of abuse and ill-treatment of children be properly investigated,
sanctions applied to perpetrators and publicity given to decisions
taken in order to enhance understanding of this phenomenon, and
that in order to achieve this, an easily accessible and child-friendly
complaint procedure be established. “
More public, low-income family affordable
day and evening care facilities open to working and non-working
parents
Mandatory Reporting Legislation
Criminal Law defining child abuse and
listing penalties for the offence