Criminal Law Protection of the Human "Mind"

2021/02/09

The current Penal Code is a historical law established in 1907 (Meiji 40), but it is only relatively recently that the issues of whether the human mind is protected by criminal law and whether causing impairment to mental functions is evaluated as an injury under criminal law have been consciously discussed.

In criminal trials (though there were previous cases disputing whether depressive states constituted injury), cases where the evaluation of PTSD (Post-Traumatic Stress Disorder) became an issue began to appear more frequently, particularly around 2000. This is likely related to the fact that PTSD became widely known in society following the 1995 Great Hanshin-Awaji Earthquake and the Tokyo subway sarin attack. In 2012, the Supreme Court also recognized that impairment of mental functions constitutes injury under criminal law in a case where a victim of confinement developed PTSD.

This judgment is supported by the prevailing theory, and I also believe it is appropriate. However, adopting this position leads to the following problem. Namely, it is not uncommon for us to experience mental stress (or unknowingly inflict it) in our daily lives. If all such instances were to constitute injury, multiple counts of (negligent) injury offenses could be established between the time one leaves home and returns, making it impossible to communicate freely with others. To avoid such a situation, it is necessary to appropriately distinguish between impairment of mental functions that qualifies as injury and mental stress that does not.

Furthermore, the Supreme Court has upheld a conviction for injury in a case where a defendant caused mental stress and symptoms such as sleep disorders in a neighbor by continuously making noise day and night for approximately six months.

This judgment is understood and supported as demonstrating that mental stress can also be a means or cause of injury. However, mental impact can potentially be more far-reaching than physical impact, such as hitting or kicking. For example, in cases of domestic violence, while the spouse is the victim of the physical assault, a child who witnesses it also suffers a mental impact.

In the past, it seems there were aspects where the protection of the mind was insufficient compared to the body, and psychological impacts were undervalued. While this point should be fully discussed and overcome, measures to avoid excessive criminalization are also required at the same time.