Judgment Date: October 23, 1985 – Supreme Court of Japan (Grand Bench)

Introduction

The protection of minors is a paramount concern in any society, often leading to specific laws and regulations designed to shield them from harm and ensure their healthy development. In Japan, alongside national legislation, prefectural ordinances play a significant role in youth protection. These local laws, however, can sometimes give rise to complex constitutional questions, particularly when they define offenses in broad terms that might intersect with personal liberties and the principle of legal clarity.

A landmark decision by the Grand Bench of the Supreme Court of Japan on October 23, 1985, grappled with these very issues. The case centered on the Fukuoka Prefecture Youth Protection and Development Ordinance and, specifically, its prohibition against "lewd conduct" (inkō) towards youths. The defendant challenged the ordinance on multiple constitutional grounds, primarily arguing that the term "lewd conduct" was overly broad and vague, potentially criminalizing a wide range of behaviors, including consensual acts, and thereby violating fundamental rights. The Supreme Court's judgment, which included significant debate as reflected in supplementary and dissenting opinions, provides a crucial interpretation of such provisions, attempting to balance the objective of youth protection with constitutional safeguards.

The Fukuoka Youth Protection and Development Ordinance: Aims and Provisions

The Fukuoka Prefecture Youth Protection and Development Ordinance (hereinafter "the Fukuoka Youth Ordinance" or "the Ordinance") at the heart of this case was enacted, according to its Article 1, Paragraph 1, with the objective of "planning the sound development of youth and protecting youth."

Key provisions of the Ordinance relevant to the case included:

• Definition of "Youth" (青少年 - seishōnen): Article 3, Paragraph 1 defined "youth" as individuals from the age of commencement of elementary school up to the attainment of 18 years of age. However, it excluded those who possess the same legal capacity as adults under other laws (e.g., married minors under certain conditions).
• Prohibition of "Lewd Conduct" (淫行 - inkō): Article 10, Paragraph 1 of the Ordinance stipulated: "No person shall commit an act of lewd conduct or an obscene act towards a youth."
• Penalties: Article 16, Paragraph 1 prescribed penalties for violations of Article 10, Paragraph 1, setting them at imprisonment for not more than two years or a fine of not more than 100,000 yen.
• Exemption for Youth Offenders: Article 17 provided that if the violator was also a "youth" as defined by the Ordinance, the penal provisions would not apply to them.

The Supreme Court, in interpreting the Ordinance, acknowledged the underlying rationale for such protective measures. It noted that youths, due to their mental and physical immaturity and the often uneven pace of their development, are generally considered to be in a state of insufficient mental stability. This makes them particularly susceptible to psychological harm from sexual acts, and recovery from such harm can be difficult. The Court understood the Ordinance's purpose, therefore, as prohibiting those types of sexual conduct directed at youths that have the potential to impede their sound development and are, by societal norms, considered reprehensible.

The Case of Mr. S and the Constitutional Challenges

The case involved Mr. S (anonymized name for 重藤真 - Shigetō Makoto), an adult who was prosecuted for allegedly violating Article 10, Paragraph 1 of the Fukuoka Youth Ordinance due to a sexual relationship he had with a 16-year-old girl. Mr. S challenged the constitutionality of the Ordinance's provisions on several grounds:

1. Vagueness and Overbreadth (Violations of Constitution Articles 11, 13, 19, 21, and 31 – Fundamental Human Rights, Right to Life, Liberty, and Pursuit of Happiness, Freedom of Thought and Conscience, Freedom of Expression, and Due Process of Law):
   The primary argument was that the term "lewd conduct" (inkō) in Article 10, Paragraph 1 was excessively vague and its scope overly broad. The defense contended that the Ordinance, as written, could be interpreted to uniformly regulate all sexual acts with youths aged 13 and older (and particularly those above the legal minimum age for marriage with parental consent), even if such acts were based on the free will and mutual consent of the youth. This, it was argued, could include sexual acts within sincere relationships based on an understanding of future marriage. Such a broad sweep would make the scope of criminalization unjustifiably extensive. The vagueness of "lewd conduct," the defense argued, created a risk that authorities could arbitrarily prosecute a wide range of general sexual behaviors involving youths, thereby infringing upon various fundamental freedoms and the right to due process.
2. Violation of Equal Protection (Article 14 – Regional Disparity):
   The defendant pointed out that regulations concerning "lewd conduct" with youths varied significantly from one prefecture to another across Japan. Some prefectures had no such specific ordinances, while others had differing definitions or penalties. This regional disparity, it was argued, resulted in unequal treatment under the law for individuals in different parts of the country, violating the equal protection clause of the Constitution.
3. Violation of Equal Protection (Article 14 – Age-Based Discrimination):
   The Ordinance specifically targeted acts with individuals under 18 years of age, creating a distinction between those under 18 and those 18 and older. The defendant argued that there was no rational basis for this age-based distinction, thus rendering it discriminatory and unconstitutional under Article 14.
4. Conflict with National Law (Child Welfare Act – Violation of Constitution Article 94):
   Article 94 of the Constitution allows local public entities to enact ordinances "within the scope of law." The defense argued that the Fukuoka Youth Ordinance exceeded this scope by conflicting with the national Child Welfare Act (児童福祉法 - Jidō Fukushi Hō). Specifically, Article 34, Paragraph 1, Item (vi) of the Child Welfare Act prohibits "causing a child to commit lewd conduct." The defense interpreted this national law as being limited to situations where the child's free will was not involved (i.e., non-consensual acts or exploitation). By regulating even consensual acts, the Fukuoka Ordinance allegedly went beyond the bounds set by national legislation.
5. Ordinance as a "Special Law" Requiring Referendum (Violation of Constitution Article 95):
   Article 95 of the Constitution stipulates that a special law, applicable only to one specific local public entity, cannot be enacted by the National Diet without the consent of the majority of the voters of that local public entity, expressed through a referendum. The defendant argued that the Fukuoka Youth Ordinance was such a "special law" and, because it was enacted without the prescribed referendum, it was unconstitutional.

The Supreme Court's Landmark Interpretation of "Lewd Conduct"

The Grand Bench of the Supreme Court dismissed Mr. S's appeal, finding the Fukuoka Youth Ordinance, when properly interpreted, to be constitutional. The majority opinion hinged on a specific, narrowing construction of the term "lewd conduct" (inkō).

The Majority's Two-Pronged Definition:
The Court declared that "lewd conduct" as used in Article 10, Paragraph 1 of the Ordinance should not be construed as encompassing all sexual acts involving youths. Instead, it must be understood in a more limited sense, referring to:

1. Exploitative Acts Using Unjust Means: "Sexual intercourse or similar acts conducted by unjust means that take advantage of a youth's mental or physical immaturity, such as by seduction (誘惑 - yūwaku), intimidation (威迫 - ihaku), deception (欺罔 - gimō), or causing confusion (困惑させる - konwaku saseru)."
2. Objectification for Sexual Gratification: "Sexual intercourse or similar acts where it can only be recognized that the youth is being treated merely as an object for satisfying one's own sexual desires (青少年を単に自己の性的欲望を満足させるための対象として扱つているとしか認められないような性交又は性交類似行為 - seishōnen o tan ni jiko no seiteki yokubō o manzoku saseru tame no taishō toshite atsukatte iru to shika mitomerarenai yōna seikō mata wa seikō ruiji kōi)."

Rationale for this Restrictive Interpretation:
The Court provided several reasons for adopting this narrowing construction:

• Etymology and Usage: The term inkō itself carries connotations of "lewdness" or "licentiousness" and does not naturally align with a meaning that includes all sexual activity.
• Avoiding Overbreadth: Interpreting inkō to cover all sexual acts with youths would lead to an overly broad application, encompassing scenarios that societal norms would not generally consider appropriate for criminal punishment. For example, it could include sexual acts between youths who are engaged or in a comparably serious and committed relationship.
• Need for Clarity in Criminal Law: Simply defining inkō as "anti-ethical" or "impure" sexual conduct would render the term too vague to serve as a clear constituent element of a criminal offense. The principle of legality (nullum crimen sine lege) requires that penal statutes be sufficiently clear to enable individuals to understand what conduct is prohibited.
• Derivable from Legislative Intent and Text: The Court asserted that its restrictive interpretation was reasonably derivable from the Ordinance's stated purpose (the sound development and protection of youth) and its text, and that this interpretation would be comprehensible to an ordinary person exercising common sense.

Constitutional Conclusion on Vagueness/Overbreadth:
With this specific, limited definition of "lewd conduct," the Supreme Court concluded that Article 10, Paragraph 1, and the associated penalty provision in Article 16, Paragraph 1, were neither unconstitutionally overbroad in their scope of punishment nor unconstitutionally vague. Therefore, they did not violate the due process requirements of Article 31 of the Constitution. As the claims of violations of Articles 11 (fundamental human rights), 13 (right to life, liberty, and pursuit of happiness), 19 (freedom of thought and conscience), and 21 (freedom of expression) were premised on the alleged vagueness and overbreadth, these arguments also failed.

Application to Mr. S's Specific Case:
In Mr. S's case, the Court acknowledged that there appeared to have been some form of ongoing association between him and the 16-year-old girl for a considerable period leading up to the acts in question. However, upon reviewing all circumstances—including their respective ages at the time, the events leading to the sexual intercourse, and the overall nature of their interactions—the Court found that the situation could only be described as one where Mr. S was treating the girl "merely as an object for satisfying his own sexual desires." Consequently, the lower court's judgment that his actions constituted "lewd conduct" under the Ordinance was deemed correct.

Addressing Other Constitutional Claims

The Supreme Court also addressed and dismissed the other constitutional challenges raised by the defendant:

• Regional Disparity and Equal Protection (Article 14): The Court reaffirmed its existing precedent (citing the Grand Bench judgment of October 15, 1958, Keishū Vol. 12, No. 14, p. 3305), stating that the fact that local public entities enact their own ordinances, potentially leading to differences in how conduct is regulated from one region to another, does not in itself constitute a violation of the equal protection clause of Article 14. This is an accepted consequence of granting ordinance-making power to local governments.
• Age-Based Distinction and Equal Protection (Article 14): The defendant argued that the Ordinance's distinction between those under 18 and those 18 and older for the purpose of prohibiting sexual acts was an irrational discrimination. The Court dismissed this, stating that the determination of the age range for "youth" falls within the realm of legislative policy and is not, in itself, a question of constitutional incompatibility, thus finding the argument lacked a proper premise.
• Conflict with the Child Welfare Act (Article 94): The argument that the Fukuoka Youth Ordinance exceeded the scope of the national Child Welfare Act was also rejected. The Court noted that the relevant provision of the Child Welfare Act (Article 34, Paragraph 1, Item (vi) – prohibiting "causing a child to commit lewd conduct") is not necessarily limited to acts where the child's free will is absent (citing a Supreme Court judgment from December 26, 1955). More importantly, the Court found that the Child Welfare Act should not be interpreted as precluding local ordinances from also regulating consensual acts of "lewd conduct" with youths under 18 for the purpose of their protection and sound development.
• Ordinance as a "Special Law" under Article 95: The claim that the Fukuoka Youth Ordinance was a "special law" requiring a local referendum under Article 95 of the Constitution was dismissed as clearly erroneous. Article 95 pertains to laws enacted by the National Diet that apply only to a single local public entity, not to ordinances enacted by local public entities themselves under their general ordinance-making powers.

The Broader Debate: Glimpses from Supplementary and Dissenting Opinions

This Grand Bench decision was not unanimous and was accompanied by supplementary opinions from two justices who concurred with the majority, and dissenting opinions from three justices. While not naming the individual justices, these opinions reveal the depth of judicial deliberation on this sensitive issue.

Core of the Dissenting Views – Persisting Vagueness:
A primary theme in the dissenting opinions was that even with the majority's attempt to narrow the definition of "lewd conduct," the term remained insufficiently clear for a criminal statute. Dissenters argued that the criteria offered by the majority (particularly the "treating merely as an object for satisfying one's own sexual desires" prong) were still too ambiguous and subjective, making it difficult for an ordinary citizen to definitively know what conduct was prohibited and potentially leading to arbitrary enforcement. This, they contended, failed to meet the constitutional requirement of clarity under Article 31 (due process). Some dissenting justices felt that the majority's interpretation went beyond what could reasonably be read into the simple word "淫行" (inkō) and bordered on judicial legislation.

Concerns Regarding Overbreadth and Substantive Due Process:
Implicit in some dissenting arguments were concerns about substantive due process – whether the state, even through a more narrowly defined ordinance, should be criminalizing certain consensual sexual acts, particularly when involving older minors who might be considered to have a greater degree of maturity and autonomy (e.g., those aged 16 or 17, an age at which females could marry with parental consent under the Civil Code at the time). The question touched upon the balance between state interest in youth protection and individual rights to privacy and self-determination.

The Problem of Inter-Prefectural Disparities:
Several opinions, including dissenting ones and even supplementary opinions that ultimately sided with the majority, expressed unease about the significant inconsistencies among youth protection ordinances across Japan. Matters like the definition of prohibited acts, the age of protection, and the severity of penalties varied widely. For conduct that is not inherently specific to a particular region (like sexual behavior), such wide disparities were viewed as undesirable for a unified national legal system. While perhaps not rising to the level of an Article 14 equal protection violation, this lack of uniformity was seen as problematic and was a factor for some justices in advocating for an even more restrictive interpretation of "lewd conduct" – one that would align with a broad national consensus on what is truly reprehensible and punishable.

Nuances in Supplementary Opinions:
The justices who wrote supplementary opinions, while concurring with the majority's conclusion to uphold the ordinance through a narrowing interpretation, often provided additional layers to their reasoning. They emphasized that "lewd conduct" is a normative concept, its meaning to be determined by prevailing societal norms at the time of the act, always considering the ordinance's protective purpose. One such opinion strongly supported the majority's two-pronged definition as reflecting contemporary societal views on what types of sexual conduct towards youth are clearly unacceptable: those involving exploitation of immaturity through unjust means, and those characterized by the objective treatment of a youth solely for sexual gratification. Another supplementary opinion stressed the need for judicial restraint in interpreting such ordinances, advocating for definitions that would garner the widest possible national agreement on what conduct warrants criminal punishment, given the existing legal disparities between prefectures.

Conclusion

The 1985 Grand Bench decision of the Supreme Court of Japan in the Fukuoka Youth Ordinance case represents a significant judicial effort to navigate the complex terrain between the legitimate aim of protecting youth and the constitutional imperative for clarity and fairness in criminal law. By providing a two-pronged definition of "lewd conduct" – focusing on exploitative means or the objective treatment of a youth solely for sexual gratification – the Court sought to narrow the scope of a potentially vague term, thereby upholding the ordinance against charges of unconstitutionality.

However, the decision was not without internal debate, as evidenced by the strong dissenting opinions that continued to argue for the provision's vagueness. The case highlights the ongoing challenges in legislating and adjudicating matters related to sexual conduct and youth protection, particularly in balancing protective paternalism with individual liberties and ensuring that criminal statutes provide clear guidance to both citizens and law enforcement. While upholding the specific ordinance through a limiting interpretation, the judgment and the accompanying opinions underscore the sensitivity and complexity inherent in defining and penalizing "lewd conduct" in a diverse and evolving society.