Objective Danger: The Japanese Supreme Court's Standard for When a Crime Begins

Japanese Attorney at Law - Bengoshi L.L.

• 5 min read
Objective Danger: The Japanese Supreme Court's Standard for When a Crime Begins

When does the act of sexual assault begin? Is it at the moment of a physical sexual attack, or can it be much earlier? This question, which lies at the heart of the legal concept of a criminal attempt, was the subject of a landmark decision by the Supreme Court of Japan on July 28, 1970. In a case involving a brutal abduction and rape, the court established a powerful and enduring legal standard: the "objective danger" test. This ruling fundamentally shaped how Japanese law determines the "commencement of execution" (実行の着手 - jikkō no chakushu), or the "point of no return," not just for sexual offenses, but for all serious crimes.

The Facts: An Abduction and Assault

On the evening of January 26, 1968, the defendant, X, was driving a dump truck with his friend, Y, as a passenger. Their stated intent was to find a woman to engage in sexual intercourse. They were cruising through the city of Hofu when they spotted a 23-year-old woman, A, walking alone. After tailing her for about 100 meters and calling out to her unsuccessfully, an agitated Y exited the truck. He approached A from behind, grabbed her, and forcibly dragged her to the passenger side of the dump truck where X was waiting.

At this point, X understood that Y intended to rape the woman, and they formed a common criminal purpose. As A struggled desperately, both men worked together to overpower her and drag her into the driver's cab of the truck. During this violent struggle at the side of the road, A sustained injuries, including bruises to her left kneecap that would require approximately ten days to heal.

Once A was inside the truck, X started the vehicle and drove about five kilometers to a remote riverbank construction site. There, inside the cab, both Y and X proceeded to rape her.

The case presented a critical legal challenge centered on the timing of events. X was charged with "Forcible Sexual Intercourse Causing Injury" (a crime now defined under Article 181, Paragraph 2 of the Penal Code). This is a "compound crime" or a "result-aggravated crime," where a baseline offense (forcible sexual intercourse) results in a more serious outcome (injury or death), leading to a significantly enhanced penalty.

The law states that this charge applies when a person "commits the crime [of forcible sexual intercourse] or an attempt thereof, and thereby causes death or injury to another." The entire case hinged on the interpretation of "an attempt thereof."

  • The Defense's Argument: The defense lawyers argued that the commencement of the rape only began after the defendants arrived at the remote construction site. The actual violence intended to enable the sex act, they claimed, started at that location. Therefore, the injury to A's knee—which occurred before the drive, while she was being dragged into the truck—happened before the legal commencement of the rape. If this were true, X could not be guilty of the single, aggravated crime. Instead, he would be guilty of two separate offenses: the crime of Injury (or Unlawful Confinement) and the crime of Forcible Sexual Intercourse. This would likely result in a less severe sentence.
  • The Prosecution's Argument: The prosecution contended that the rape attempt began the moment the defendants started using violence to overpower the victim with the intent to rape her. This moment was when they collectively dragged her into the dump truck. According to this view, the injury was a direct result of the rape attempt itself, fulfilling all the requirements for the single, more serious charge of Forcible Sexual Intercourse Causing Injury.

Both the trial court and the appellate court sided with the prosecution. The defendant appealed to the Supreme Court of Japan.

The Supreme Court's Landmark "Objective Danger" Standard

The Supreme Court rejected the appeal and affirmed the conviction for the more serious offense. In its concise but powerful reasoning, the Court articulated a new and definitive standard for determining the commencement of a crime.

The Court ruled:

"...at the stage when the defendant tried to drag the woman into the driver's cab of the dump truck, an objective danger of the act leading to rape was clearly recognizable, and therefore it is reasonable to conclude that the commencement of the act of rape occurred at that point."

This was a groundbreaking moment in Japanese criminal law. For the first time, the Supreme Court explicitly based its decision on a substantive criterion—the creation of "objective danger"—rather than relying on older, more formalistic tests, such as requiring the start of the core criminal act itself (in this case, the sexual attack) or an act in "close contact" with it. The decision established a new, pragmatic test: the commencement of a crime occurs at the point when the perpetrator's actions create a clear, objective danger that the intended crime will be completed.

How "Objective Danger" Works in Practice

The "objective danger" standard is not assessed in a vacuum. Its application by the courts has shown that this danger is evaluated by considering the perpetrator's overall plan of action (shoi keikaku) and the entire context of the situation. A court will look at the plan, the steps already taken, and the nature of any remaining obstacles to determine how high the probability of the crime's completion has become.

Applying this to the facts of the case:

  • The Plan: The defendants' plan was to rape the victim.
  • The Action: Forcibly dragging her into a dump truck.
  • The Assessment of Danger: This action was far more than a simple assault or act of confinement. By dragging the victim into the enclosed, mobile, and private space of the truck's cab, the defendants placed her completely under their control. They eliminated her avenues of escape, removed her from public view, and neutralized her ability to call for help. At that point, there were virtually no significant external obstacles left to prevent them from carrying out the rape. The successful completion of their criminal plan had become a high probability.

Therefore, the court concluded that the moment she was forced into the vehicle, the situation had escalated from preparation to an active attempt. The "objective danger" of the rape occurring was no longer a future possibility; it had become a manifest and immediate reality.

The Lasting Legacy of the "Objective Danger" Standard

This 1970 decision had a profound and lasting impact on Japanese criminal jurisprudence. The "objective danger" test, first clearly articulated here, became the definitive standard used by the Supreme Court in subsequent decades to determine the commencement of execution for a wide range of serious crimes, including murder, drug trafficking, and smuggling.

It represented a significant evolution from the principle seen in the 1965 theft case (discussed in a previous article), where the court began to weigh the defendant's plan to find an "imminent risk." The 1970 rape case crystallized and refined this idea, establishing "objective danger" as the explicit legal benchmark.

This standard allows for a flexible yet principled analysis. It moves beyond rigid, formalistic definitions and focuses on a substantive assessment of the real-world danger created by a defendant's actions. It recognizes that the "point of no return" is not always the final act in a criminal sequence but the crucial moment when the perpetrator's actions, guided by their criminal intent, make the tragic outcome an objective and imminent likelihood. In the eyes of the law, the moment the defendants dragged their victim into the truck, the rape had already begun.