Japanese women initiated the international recognition of domestic violence as a human rights violation. Confronted with the denial of the prevalence and harm of domestic violence, Japanese women professionals and community leaders established the Domestic Violence Action and Research Group (“DVARG”) in 1992. They conducted a nationwide survey that documented the existence of domestic violence, the physical and emotional damage suffered by women, and the failure of police, Family Court mediators and judges, and social services to provide help to the victims. In 1993, DVARG members presented their survey report and conducted a workshop on domestic violence for the NGO forum at the United Nations World Conference on Human Rights in Vienna. In response to this presentation, the Vienna Human Rights Conference recognized for the first time that domestic violence is a human rights issue.
For more than 25 years, the global movement against violence against women has worked to ‘transform significantly the place of women and the status of gender based violence within the human rights discourse.
“The 1993 World Conference on Human Rights adopted the Vienna Declaration and Programme of Action that recognized that ‘the human rights of women and of the girl child are an inalienable, integral and indivisible part of universal human rights.” In 1994, the rights of women, including the elimination of violence against women, were integrated into the human rights mechanisms of the United Nations, and the position of Special Rapporteur on violence against women was created by the UN General Assembly.
The due diligence standard, within international human rights law, has increasingly become the parameter that measures the level of State compliance with its obligations to prevent and respond to acts of violence against women. The 1993 [UN General Assembly] Declaration on the Elimination of Violence against Women urges States to exercise due diligence to ‘prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons…. [and] provide remedy and reparation to victims of violence against women.’
Japan, working toward fulfilling its human rights obligations and responding to pressure from the Japanese women’s DV shelter movement, passed the Act on the Prevention of Spousal Violence and the Protection of Victims (Act No. 31 of 2001) (“the Act”). This Act created new legal remedies to protect victims. The Preamble of the Act refers to “protection of human rights” and states that “spousal violence constitutes a criminal act” and that women are the primary victims of domestic violence.
The initial Act was made stronger in 2004 and 2007 in response to criticisms by the Japanese women. The amendments added ex-spouses and the children and relatives of the victim as people to be included in the protection orders. The maximum duration of protection orders was increased from two weeks in the 2001 Act to six months that the spouse must stay away from the victim and not harass the victim. The offending spouse may be excluded from the family home for two months. “Life-threatening intimidation” was added to “bodily harm” as a basis for protection orders. These amendments made the Act more like the protection order acts of other countries.
The current Act, however, retains weaknesses.
No provision is made for excluding the offending spouse permanently when the marital home is owned by the victim.
The period of exclusion from the marital home is limited to two months with the expectation that the victim will move from the marital home (Article 18). This provision assumes that the marital home is owned by the offending spouse.
The standard for extending the protection order beyond an initial six-month period is too high, and this request can be denied if it “will cause extreme hindrance” to the offending spouse.
Stalking and harassment are not included as behavior for which one may request a protection order, although these are prohibited during the six-month protection order period.
There remains the requirement that the victim’s allegations be corroborated. If the victim includes statements in the petition that assistance was requested from the police or a Spousal Violence Counseling and Support Center “the court shall request” statements from the police or the Center explaining “the circumstances” of the request by the victim. (Article 14) In addition, when the victim has not sought that help, then the petition must be sworn before a Notary (Article 12 (2)). This is also a financial burden for the petitioner.
The corroboration requirement shows a bias against the credibility of women that violates women’s equality.
In Japan, the constitutional imperative pursuant to Article 14 of the Constitution and treaty obligations under CEDAW and the Convention on Human Rights mandate gender equality and recognition of women’s human rights. The history of the Law for the Prevention of Spousal Violence shows that Japan recognizes that international human rights norms require effective civil legal remedies to protect victims of domestic violence, in addition to diligent criminal justice intervention to stop the violence.