Hiroko Goto: Juveniles Known as "Specified Juveniles"—Juvenile Law Reform and Social Responsibility

2022/04/13

From April 1st of this year, the legal order that has been taken for granted for nearly 150 years will change significantly. In 1876 (Meiji 9), a Dajokan Proclamation (No. 41) was issued stating that "henceforth, twenty full years shall be fixed as the age of majority," which was inherited by the current Civil Code (1896), setting the age of adulthood at 20. This will now become 18, and those under 18 will be minors. Consequently, on April 1st, people who are currently 18 or 19 years old (born between April 2, 2002, and April 1, 2004) will all become adults at once.

In this society, the age for becoming an adult has long been 20. The first changes occurred regarding the age for changing the Constitution or choosing representatives of the people, such as the National Referendum Act (2007) concerning constitutional amendments and the Public Offices Election Act amendment (2015). Lowering the voting age grants the right to vote, and since its exercise is left to the individual's will, it simply increased the available options.

On the other hand, the age of adulthood in the Civil Code signifies departure from a broad protection program for minors. For minors, contracts made without the consent of a person with parental authority can be canceled later, protecting them from consumer damage and other issues. By lowering that age to 18, 18- and 19-year-olds will be treated as adults, requiring a more cautious approach to contracts and other matters. Furthermore, the marriageable age for women, which had been criticized as discriminatory, will be raised from 16 to 18 *1.

Because the impact of lowering the age of adulthood in the Civil Code is large-scale and affects all aspects of the daily lives of 18- and 19-year-olds, many related reports began to appear starting in March. However, the change in age starting April 1st does not occur only in the Civil Code.

The Juvenile Law is a law that treats juveniles who have committed crimes or other acts as delinquent juveniles, giving them special treatment due to their immaturity. Since 1949, the Juvenile Law has defined those under 20 as juveniles and those 20 and older as adults, providing educational and protective responses to delinquent juveniles that differ from those for adults.

Cases involving juveniles aged 14 to under 20 who have committed acts violating penal laws such as the Penal Code are all sent to the Family Court, where they undergo investigation by Family Court investigators and, in some cases, assessment by psychological experts at a Juvenile Classification Home. Based on the information collected there and information from the investigation stage, a judge determines what kind of treatment is necessary for the juvenile. Furthermore, even for those under 14 who are below the age of criminal responsibility, they are subject to Family Court hearings as juvenile offenders, although this is predicated on the judgment of a child consultation center. Additionally, even if a crime has not been committed, if there is a risk of committing a crime in the future, they are subject to Family Court hearings as pre-delinquent juveniles.

Except in cases where a hearing is not commenced (non-commencement of hearing) because the educational measures of the Family Court investigator are deemed sufficient, the Family Court holds a hearing and issues rulings such as protective measures (probation, referral to a juvenile training school, etc.) or a referral to a public prosecutor's office for indictment to undergo the same trial as an adult (referral to a prosecutor = reverse referral).

Under the amendment to the Juvenile Law last year, 18- and 19-year-old juveniles are now treated as "Specified Juveniles," distinct from juveniles under 18. However, since the age subject to the Juvenile Law remains unchanged at 20 from April 1st, the procedure of sending all cases to the Family Court remains the same even for Specified Juveniles.

First, in the case of Specified Juveniles, the application of pre-delinquency was abolished. In other words, unless they commit a crime, they are not subject to the educational and protective responses of the Juvenile Law, making them an exception to the Juvenile Law system of preventing delinquency through early intervention (Article 65, Paragraph 1).

Furthermore, protective measures for Specified Juveniles now differ from before, with referral to a juvenile training school and other measures to be carried out "within a scope that does not exceed a reasonable limit, taking into account the gravity of the circumstances of the offense" (Article 64, Paragraph 1). If a protective measure results in probation and the juvenile fails to comply with the rules while under the guidance and supervision of a probation officer or volunteer probation officer in society, it is not only possible to confine them in a juvenile training school through a Family Court hearing as before, but it has also become possible to return them to society once it is determined that the necessary education has been completed (Article 66).

Furthermore, the scope of cases that are, in principle, referred to a prosecutor (mandatory reverse referral cases) has been expanded. Previously limited to cases where a victim died due to an intentional act (Article 20, Paragraph 2), it now includes cases where the minimum punishment is imprisonment with or without work for one year or more. Consequently, crimes such as robbery and forcible sexual intercourse have also become mandatory reverse referral cases (Article 62, Paragraph 2).

In addition, for Specified Juveniles, the special treatment for juveniles sentenced to guilt in a criminal trial has been abolished. For example, restrictions on qualifications that did not exist before will now be implemented (Article 67). Furthermore, if a prosecutor indicts the juvenile in a District Court after a reverse referral, it has become possible to engage in "inferential reporting" (reporting that allows the juvenile to be identified), which was previously prohibited (Article 68).

This is the fifth amendment to the Juvenile Law in the 21st century. The previous four amendments were basically carried out because a high-profile juvenile incident occurred and the existing system was judged insufficient. For example, the 2000 amendment to the Juvenile Law was triggered by juvenile incidents such as the Yamagata mat death case and the Kobe child murders.

In the latter case, where a 14-year-old boy killed two elementary school students, the fact that the Juvenile Law at the time did not allow for criminal trials similar to those for adults for juveniles under 16 became an issue. As a result, for those 14 and older, the Family Court can now perform a reverse referral to hold them responsible in a criminal trial. Additionally, victims, who previously could not obtain any information because hearings were closed to the public, can now state their opinions, be informed of the details of the disposition, and read or copy the records of the hearing. Through subsequent amendments to the Juvenile Law, victims can now also observe hearings, although this is limited to certain cases.

The reason this amendment to the Juvenile Law was carried out, despite no major juvenile incident occurring and no increase or worsening of juvenile crime, was to align it with the amendments to the Public Offices Election Act and the Civil Code mentioned at the beginning. Regarding this amendment, "consistency across national laws" was mentioned from the start and became the reason for the reform *2.

Although discussions on amending the Juvenile Law based on "consistency across national laws" began in the Legislative Council in 2017, there was strong opposition to lowering the age of adulthood in the Juvenile Law, based on the premise that the current Juvenile Law fulfills a certain function for "sound development" (Article 1) to prevent growth into criminals, and the discussion reached a deadlock. It was politics that broke it.

In July 2020, the ruling parties' Juvenile Law Project Team (PT) compiled the "Ruling Party PT Agreement on the Future of the Juvenile Law (Basic Concept)," stating that "they are still in the process of growth, possess plasticity, and educational treatment is necessary and effective for rehabilitation and prevention of recidivism. Therefore, they require treatment different from those aged 20 and older." Thus, while keeping 18- and 19-year-olds as juveniles under the Juvenile Law, it was decided to treat them differently from those under 18 *3. Following this, a recommendation was made in October 2020, leading to the 2021 legal amendment and the birth of the category of Specified Juveniles.

The amended Juvenile Law will also come into effect on April 1st, and the treatment of Specified Juveniles will begin.

The first impact will be the reporting of juveniles' real names. Regarding this point, the Supreme Public Prosecutors Office stated that for juvenile cases indicted after being reverse-referred on or after April 1st, real names may be disclosed depending on the case. Under the Juvenile Law, in the case of a reverse referral, the prosecutor's office must, in principle, indict (Article 45, Item 5). Of course, even if the prosecutor's office discloses the name, whether to report the real name is a decision for each news organization. However, in reporting where real-name reporting is the principle, it is hardly expected that they will refrain from it when a substantial seal of approval has been given.

Therefore, despite being juveniles under the Juvenile Law, their real names will be reported after indictment. If they are given the same punishments as adults and their real names have been reported when they return to society from prison or other facilities, they will naturally face a significant handicap in employment and other areas.

The Juvenile Law considers that juveniles commit crimes because society failed to discover them as victims of child abuse or bullying and neglected them. It demands that the society that turned the juvenile into a delinquent juvenile fulfill its responsibility by assisting in the juvenile's social reintegration. With the lifting of the ban on real-name reporting, there is a high possibility that society and the media will push the responsibility solely onto the Specified Juvenile and fail to fulfill their own responsibility. Exempting the omission of society, which failed to discover the problems the juvenile was facing until the age of 18 or 19, is not the response sought by the Juvenile Law.

In addition, even if a case goes to criminal trial, if the District Court determines that protective measures are more appropriate, the case may be returned to the Family Court once more, and a referral to a juvenile training school or other measures may be ordered (Article 55 transfer). Until now, Family Courts and juvenile training schools have never handled juveniles whose real-name reporting was justified. Therefore, it is unpredictable what kind of impact this will have on proceedings and treatment.

Since the current amendment to the Juvenile Law, other than real-name reporting, primarily questions how the Family Court should face Specified Juveniles, the risk to the juvenile's social reintegration can be minimized by the Family Court taking actions consistent with the sound development of juveniles under Article 1 of the Juvenile Law.

The Juvenile Law does not specifically mention how society should fulfill its responsibility for turning Specified Juveniles into delinquent juveniles. This time, unlike the Civil Code, Specified Juveniles remain juveniles under the Juvenile Law. This legal amendment asks each of us to reconsider the responsibility of society to soundly develop these Specified Juveniles. We must not forget that Specified Juveniles are juveniles and are beings who have the right to be treated as juveniles under the Juvenile Law.

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* 1 For details on the specific changes, see https://www.govonline.go.jp/useful/article/201808/2.html.

* 3 https://www.moj.go.jp/content/001329126.pdf