Public indecency (Penal Code Article 174) punishes a person who performs an obscene act in public. A provision of the current Penal Code from its 1907 enactment, it remains in use today. Against Penal Code Article 175 (distribution of obscene articles), which regulates sexual expression as an object (text, image, electromagnetic record), Article 174 regulates indecency as an act (using the body). Together the two form the core of Japan’s obscenity regulation. This article covers the text, the elements, the case law, and the modern operation.

Text and penalty

Article 174 provides that “a person who openly commits an obscene act shall be punished by imprisonment for not more than six months, a fine of not more than 300,000 yen, misdemeanour detention, or a petty fine”. The penalty is light relative to Article 175, but the offence is recorded as a criminal conviction.

The elements

“Openly” (public nature) means a state in which an unspecified or many persons could perceive the act. The case law does not require that many people actually perceive it; an objectively existing possibility of perception by an unspecified or many persons suffices. An act on a late-night street with no actual passers-by can still be public if the place objectively carries the possibility of perception. The judgement weighs place, time, situation, the presence of others, distance, and screening.

The “obscene” concept under Article 174 rests on essentially the same interpretation as under Article 175: the three requirements from the 1957 Lady Chatterley ruling, that the act needlessly excites or stimulates sexual desire, injures the normal sexual modesty of an ordinary person, and runs counter to sound sexual moral feeling. For acts, however, the artistic or intellectual-content defence operates more narrowly than for objects. Subjectively, the actor must be aware that the act is public and obscene; lack of that awareness (believing the space to be closed, for instance) can negate the elements.

Principal applications

Exposing a sexual body part to unspecified persons (exhibitionist conduct) is the typical case: the theme of exposure is permissible in depiction but a public-space act is an Article 174 violation. Strip-theatre nude performance, where the audience pays to enter, is in principle not public, but direct genital exposure or sexual acts in the staging can fall within Article 174. The Tokyo High Court ruling of 7 July 1993 held that even with entry restriction, public nature can be found where the entry of unspecified persons is in practice possible, an important precedent on the boundary between performance and public indecency.

Sexual acts in public spaces (parks, streets, public toilets) are a representative application, regardless of the parties’ mutual consent, where public nature and obscenity are present. In recent years the streaming of sexual acts in public spaces on social and distribution platforms has produced new cases, making the operation of the public-nature concept in the internet age a live question. Public-space exposure for the purpose of adult filming can make both filmer and performer liable; the outdoor-exposure theme in personal-filming circulates as staging in works but is a criminal act when actually filmed in public space.

Relation to neighbouring law

Penal Code Article 175 regulates sexual expression as an object; Article 174 regulates indecency as an act; both can be made out in one case (an obscene act filmed and then distributed). The Minor Offences Act (Article 1(20)) covers minor body exposure not reaching obscenity. Prefectural nuisance-prevention ordinances cover lewd conduct (groping) on public transport and in public places, overlapping in part with Article 174. Acts within the permitted scope of a sex-related special business under the Fueihou are unlikely to draw Article 174, though acts exceeding the licensed scope can.

See also

• Waisetsu
• Penal Code Article 175
• Freedom of expression
• Fueihou