Overview of the amendment bill

The 204^th meeting of the Diet is currently being held. At this meeting, an amendment bill to the Anti-Stalking Act has been submitted^[1]. The bill proposes to add the following two regulated acts to the Act: (1) unauthorized acquisition, etc., of location information using GPS devices, etc., and (2) keeping watch in the vicinity of the place where the party being stalked is actually present. (1) regulates the act of acquiring location information using a GPS device, etc., without the consent of the other party, as well as the act of installing a GPS device, etc., without the consent of the other party. (2) is related to how the current Anti-Stalking Act regulates keeping watch in the vicinity of a "residence, place of employment, school, or other location where the other party is normally present" (hereinafter, "residence, etc.") (Article 2, Paragraph 1, Item 1). The amendment bill also attempts to target cases of keeping watch, etc., near places which are not a residence, etc., but where the other party is actually present based on information acquired through methods such as GPS devices, SNS, or the Internet.

Background of amendment

There were two rulings by the Japanese Supreme Court that triggered the proposal for amendment of the Anti-Stalking Act. These were the Supreme Court Ruling 2-7-30 Supreme Court Reports 74-4-476 (Case A)^[2] and Supreme Court Ruling 2-7-30 Court Newsletter 1749-2 (Case B)^[3]. In Case A, the accused secretly attached a GPS device to the car used by his wife, from whom he was living separately at the time. Afterwards, he searched and acquired the location information of the car many times (181 times in about 20 days). In Case B, the accused secretly attached a GPS device to the car used by his ex-girlfriend, and then searched and acquired the location information of the car many times (more than 600 times in about 10 months). These acts were indicted as being equivalent to the act of "keeping watch in the vicinity of a residence, etc." as prescribed in Article 2, Paragraph 1, Item 1 of the Anti-Stalking Act. Both cases were considered to be "keeping watch" in the first trial. However, in subsequent appeals, neither case was judged to be "keeping watch" by the court. In both cases, the Supreme Court stated the following when ruling that the acts do not constitute "keeping watch in the vicinity of a residence, etc.": "Article 2, Paragraph 1, Item 1 of the Anti-Stalking Act regulates the act of 'keeping watch in the vicinity of a residence, place of employment, school, or other location where the other party is normally present' toward a specific person to whom the perpetrator has feelings of affection, etc., or with whom the perpetrator is in a close social relationship. When considering the contents and purpose of the Act, in order to constitute the act of 'keeping watch in the vicinity of a residence, etc.,' even in the case of using a device, etc., it is reasonable to require that the act consists of observing the movements of the specific person, etc., stated above in a fixed location that is in the vicinity of the residence, etc., inhabited by the specific person, etc." In other words, the search and acquisition of location information is not performed in the vicinity of a residence, etc., and the location information of the moving vehicle is not information on the movement of the specific person in the vicinity of a residence, etc.

Previously, police have dealt with this type of case as "keeping watch" under the Anti-Stalking Act. However, the police were forced to change how they handle such cases in response to the Supreme Court ruling. Therefore, the National Police Agency held the study group by experts on the ideal form of regulations on stalking, etc. and compiled a report on January 18, 2021^[4]. In response to such trends, an amendment bill has been submitted to the Diet. During this period, some of the movements toward legal amendment have taken place with unusual speed.

Evaluation of the Supreme Court ruling

The Supreme Court has ruled that interpretations that deviate from the stipulation of "in the vicinity of a residence, etc." are not allowed. From the perspective of the criminal statutory principle that "without law, there can be no crime or punishment," this judgment is a perfect example of criminal law following basic precedent. However, I am concerned that the recent Supreme Court ruling will cause the acts discussed above to be perceived as permissible behavior until new legislation is enacted. In fact, after this ruling, it seems that some people have said that such acts are not bad behavior because they are not a violation of the law. Until the law is amended, to show public judgement on such acts, personally, I believe that the Supreme Court should have clearly stated that even if such acts are not subject to punishment under the current law, it does not mean that it is acceptable to engage in such acts.

It is also worth considering whether it was possible to go further and engage in interpretation that affirms the application of the current law. If the interpretation itself shows that negation theory is more relevant but that affirmative theory is not impossible^[5], while adding that it is preferable to enact new legislation and strongly urging appropriate amendment of the law, I believe that there could have been room for an interpretation such as a temporary bridge until amendment of the law in which the application of the current law is affirmed for the act in question.

What kind of legislation is desirable?

In this amendment bill, acquisition of location information using GPS devices, etc., is included in the target of regulations. Even so, it appears that the target is relatively limited from the viewpoint of regulation. Given that new methods for observing movement may emerge in the future, there may be a view that a provision which comprehensively regulates dubious acts is preferable. However, this way of thinking will likely be opposed by the idea that we must clearly define acts which are subject to punishment. Additionally, there may be a legal system in which a restraining order by the police, etc., is preceded and the violation is subject to penalties. Still, when the police, etc., are given a wide range of discretion in deciding the specific content of the restraining order, questions are likely to be raised from the perspective of separation of powers^[6]. In summary, traditional criminal law has also required criminal legislation to be reasonably rigorous. However, there is concern that adhering to the stance of strict interpretation and strict legislation may result in neglecting acts which obviously inconvenience others. I feel that criminal law thus far has not paid much attention to the social costs of loyalty to criminal principles.

The amendment of the Anti-Stalking Act seems to be a wonderful opportunity to reconsider the role of criminal law in the context of modern society, between the perspectives of interpretation and legislation.

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[1] For details on contents, refer to https://www.shugiin.go.jp/internet/itdb_gian.nsf/html/gian/honbun/houan/g20409041.htm.
[2] Refer to Junichi Yoshikai, Hanhi, Jurist, Vol. 1554, from p. 88; author's manuscript, Hanhi, Explanation of Important Rulings for 2020, (Jurist Vol. 1557 (special volume)) (2021), from p. 128.
[3] Refer to Yu Kamon, Hanhi, TKC Watch Criminal Law, No.155.
[4] https://www.npa.go.jp/safetylife/seianki/stalker/R2-1/houkokusyo.pdf
[5] Prior to the Supreme Court ruling, there were influential views and a considerable number of cases in lower courts based on affirmative theory.
[6] For issues related to two-step criminalization, refer to A. P. Simester and A.von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (2011), pp. 212-232.

Note: The Amended Anti-Stalking Act was passed on the plenary session of the House of Representatives and put into effect in May 18.

Naoya Takahashi
Professor, Chuo Law School
Area of Specialization: Criminal Law

Naoya Takahashi was born in Iwate Prefecture in 1966. In 1989, he graduated from the Department of Law in the Faculty of Law, Chuo University. In 1995, he completed the Doctoral Program in the Graduate School of Law, Chuo University. He held positions such as Full-Time Instructor at the Research Institute of Civilization, Tokai University and Associate Professor in the Graduate School of Law, Surugadai University before assuming his current position. He holds a PhD in law from Chuo University. He is a bar examiner.

His major research theme is fundamental theory of criminal law.

His main written works include The Possibilities of Fundamental Theory in Criminal Law, Seibundoh (2018) and more.

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