Article 175 of the Penal Code is the Japanese criminal provision punishing the distribution of obscene documents, pictures, and electromagnetic records, and it is the central provision of the regulation of sexual expression in modern and contemporary Japan.

Article 175 of the Penal Code (Japanese: 刑法175条, Keiho 175-jo; the offence of distributing obscene materials) is the Japanese criminal provision punishing a person who distributes or publicly displays an obscene document, picture, electromagnetic record, or other object, and a person who possesses such for the purpose of sale. It is a provision included from the outset in the current Penal Code, enacted in 1907, and, through subsequent revisions, it has formed the legal foundation of the regulation of sexual expression in Japan for more than 120 years. This article treats the structure of the provision, its legislative history, leading cases, and present-day enforcement.

The text

The current text of Article 175 (after the 2011 revision) is as follows (in summary).

Paragraph 1: A person who distributes or publicly displays an obscene document, picture, recording medium containing an electromagnetic record, or other object shall be punished by imprisonment for not more than 2 years, a fine of not more than 2.5 million yen, or a petty fine, or by both imprisonment and a fine. The same applies to a person who distributes an obscene electromagnetic record or other record by transmission of telecommunications.

Paragraph 2: A person who possesses the object referred to in the preceding paragraph, or stores the electromagnetic record referred to in that paragraph, for the purpose of distributing it for value, shall be punished in the same way as under that paragraph.

The statutory penalty is imprisonment for not more than 2 years, a fine of not more than 2.5 million yen, or both.

Legislative history

The Meiji-period prehistory

Article 259 of the old Penal Code, enacted in 1880, contained a provision punishing the sale, and the manufacture, of obscene documents and pictures. This is the direct predecessor of the current Article 175.

When the current Penal Code was enacted in 1907, the provision in its modern form was introduced as Article 175. That period corresponds to a time, in the process of forming a modern nation-state, of constructing a moral order distinctive to Japan while referring to the Western European penal-code systems. Article 175 functioned while referring to provisions of the same kind in French and German criminal law and connecting with the distinctive development of the concept of obscenity in Japan.

Postwar revisions

In the revisions of the Penal Code after the Second World War, Article 175 underwent several substantive revisions while maintaining its basic structure. The 1995 modernisation of the Penal Code’s language rendered the style colloquial. The 2011 revision explicitly made electromagnetic records (digital data) an object of distribution, turning the provision into one responsive to the circulation of expression in the internet age.

The statutory penalty has the history of being raised in stages, from the original imprisonment of not more than 6 months to the present not more than 2 years.

Leading cases

The enforcement of Article 175 has been shaped by several important Supreme Court cases. These cases form the central issues of the postwar Japanese legal system regarding the definition of the concept of obscenity and its relation to freedom of expression.

The Chatterley case (1957)

This was the case in which the Koyama Shoten edition (translated by Sei Ito, 1950) of D. H. Lawrence’s Lady Chatterley’s Lover (Britain, 1928) was prosecuted for violation of Article 175. On 13 March 1957, the Grand Bench of the Supreme Court found the defendants guilty and formulated the standard for judging obscenity as “that which needlessly excites or stimulates sexual desire, harms the normal sense of sexual shame of the ordinary person, and runs counter to a sound concept of sexual morality” (the three requirements of the Chatterley judgment).

The judgment formed the basis of subsequent case law and practice as the normative definition of the concept of obscenity in postwar Japan. At the same time, it became the starting point of a continuing debate over the relation of tension with freedom of expression.

The Akutoku no Sakae case (1969)

This was the case in which the Tatsuhiko Shibusawa translation, Gendai Shichosha edition (1959), of the Marquis de Sade’s Histoire de Juliette, ou les Prospérités du vice was prosecuted for violation of Article 175. On 15 October 1969, the Grand Bench of the Supreme Court found the defendants guilty but required, in judging obscenity, “consideration of the document as a whole,” denying judgment on the basis of particular lewd passages alone (the method of overall consideration).

The judgment refined the methodology of obscenity judgment and deepened the debate over the relation between literary and artistic value and obscenity. In a minority opinion, a view was put forward that where a document is of high artistic and intellectual value, obscenity may be negated (the position that something with literary quality is not obscene), influencing the debate in later years.

The Yojohan Fusuma no Shitabari case (1980)

This was the case in which the publication in the monthly magazine Omoshiro Hanbun (1972) of the obscene document “Yojohan Fusuma no Shitabari,” which came into being in the Meiji period and is attributed to Nagai Kafu, was prosecuted for violation of Article 175. On 28 November 1980, the Supreme Court found the defendants guilty and set out, as elements for judging obscenity, the degree and method of the sexual description; the weight the sexual description occupies in the whole; the relation between the theme of the document and the sexual description; the artistic and intellectual quality of the document; and the reception of the general reader (the judgment elements of the Yojohan judgment).

The judgment is referred to as practical standards to the present day, as the precedent that finally organised the method of judgment in the postwar enforcement of Article 175.

Present-day enforcement

Response to electromagnetic records

By the 2011 revision of the Penal Code, electromagnetic records (digital data) were explicitly made an object of distribution. With this, the distribution of obscene images and videos on the internet, and distribution via overseas servers, were clarified as objects of the application of Article 175.

In case law, even data stored on an overseas server is held to fall within Japanese jurisdiction where it is distributed for the purpose of access from within Japan (Supreme Court decision of 25 November 2014, among others). By this, the practice of enforcing Article 175 against internet distribution routed overseas has become settled.

The practice of mosaic processing

In adult videos, adult magazines, and photo collections, the practice of covering the genitals with blurring (mosaic processing) was established as an industry-self-regulatory response to the standards for enforcing Article 175. Where this processing is applied, an industry practice has formed in which “no obscenity” is found in the obscenity judgment of Article 175. However, legal obscenity is not mechanically determined by the presence or absence of mosaic processing alone, and the final judgment is made case by case.

Art and the regulation of expression

In recent years, several cases of the application of Article 175 in the field of art have arisen. A work by the artist Rokudenashiko taking the female genitalia as its theme was prosecuted as a violation of Article 175 in 2014; in July 2020, the First Petty Bench of the Supreme Court recognised the establishment of the offence of distributing an obscene electromagnetic record for the act of transmitting 3D data of the female genitalia and confirmed a guilty verdict with a fine of 400,000 yen, while an acquittal was confirmed in the lower court for the display of sculptural objects shaped after the female genitalia. The case has become an object of criticism and research as one presenting contemporary issues regarding the relation between artistic expression and obscenity.

International comparison

In the countries of the Anglo-American legal tradition, the regulation of obscenity is enforced in a relation of tension with freedom of expression (the First Amendment to the US Constitution, and so on). The US Miller test (Miller v. California, 1973) and the British Obscene Publications Act 1959 each have their own standards of judgment.

Compared with the regulation of these countries, Japan’s Article 175 is characterised by a strong tendency to make the explicit depiction of the genitals itself an object of regulation, and by the relatively weak function, as a defence, of the evaluation of artistic and intellectual quality. This is a practice distinctive to Japan, formed in the accumulation of postwar case law, and it constitutes a system of sexual-expression regulation that is unusual internationally as well.

See also

• Obscenity — the central concept of Article 175
• AV Act — the performer-protection law enacted in 2022
• Zoning — an alternative framework of debate
• History of erotic books
• Shunga