- My kid was diagnosed with malnutrition at the hospital. The hospital reported to the police suspecting child neglect…
- I got arrested and detained at Chofu Police Station of the Metropolitan Police Department on a charge of having enforced my daughter of 13-years-old to prostitute…
1. Child Abuse and Child Neglect
In the case of child abuse and child neglect, the perpetrator could be investigated and arrested by the police on suspicion of (1) violation of the Child Welfare Act; (2) violation of the Child Abuse Prevention Act; or (3) abandonment by a person responsible for protection.
Child abuse and child neglect are defined being categorized into 4 types according to the Child Abuse Prevention Act.
Physical Abuse: Assault the child in a manner that will cause or is likely to cause external injury on the body of the child.
Sexual Abuse: Engage in indecency against the child or cause the child to engage in indecency.
Neglect: Substantially reduce the amount of food for the child or abandon and neglect the child for a long time period in a manner that may interfere with normal development of the body and mind of the child, or leave a person living together other than the custodian to commit any act that is equivalent to those listed in the preceding two items or the following item, or otherwise materially fail to perform the duty of custody as a custodian.
Psychological Abuse: Speak or behave in a manner that would be significantly traumatic to the child.
2. Punishment and Statutory Penalty of Violation of Child Welfare Act, Violation of Child Abuse Prevention Act, and Abandonment by a Person Responsible for Protection
| Charged Offense | Punishment/Statutory Penalty |
| Cause a child to commit an obscene act (violation of the Child Welfare Act) | Imprisonment with work for not more than 10 years or a fine not exceeding 3,000,000 yen, or both. |
| Indecency by the guardian (Article 179(1) of the Penal Code) | Imprisonment with work for not less than 6 months not more than 10 years. |
| Rape by the guardian (Article 179(2) of the Penal Code) | Imprisonment for not less than 5 years. |
| Violation of order to refrain the custodian from approaching the child (violation of the Child Abuse Prevention Act) | Imprisonment with work for not more than 1 year or a fine not exceeding 1,000,000 yen. |
| Abandonment by a person responsible for protection (Article 218 of the Penal Code) | Imprisonment with work for not less than 3 months not more than 5 years. |
| Abandonment causing injury by a person responsible for protection (Article 219 of the Penal Code) | Imprisonment with work for not less than 3 months not more than 15 years. |
| Abandonment causing death by a person responsible for protection | Imprisonment with work for a definite term of not less than 3 years. |
3. Violation of Child Welfare Act
The Child Welfare Act prohibits the act that causes a child to commit an obscene act (Article 34(1)(6) of the Child Welfare Act) and provides for penalties when one violated it (imprisonment with work for not more than ten years or a fine of not exceeding 3,000,000 yen, or both) (Article 60(1) of the Child Welfare Act)
Also, where one delivered a child knowingly to a person who is likely to commit any of the acts that causes the child to commit an obscene act, he/she could be punished by imprisonment with work for not more than three years or a fine of not exceeding 1,000,000 yen, or both.
The term “child” as used in the Act means a person under 18 years of age (a person over 18 years of the age is not subject)
(Article 4(1) of the Child Welfare Act)
The perpetrator is not necessarily the guardian such as the parents of a child because the Act calls for criminal penalty against a person who caused the child to commit an obscene act exercising actual influence over the child and the child came to commit an obscene act. Understandably, the guardian such as the parents could be highly punished by the Child Welfare Act when the parents caused their child to commit an obscene act because it is usually understood that the guardian such as the parents has a significant influence over the child.
4. Indecency and Rape by the Guardian
When committed an indecent act (ex. touching breast or genital organ) or sexual intercourse (including anal intercourse and oral sex) against a person under the age of 18 (regardless of gender) taking advantage of having the authority over a child as a person who has actual custody of the child, the perpetrator can be charged with indecency by the guardian (imprisonment with work for not less than 6 months not more than 10 years) or rape by the guardian (imprisonment with work for not less than 5 years).
This crime was newly established by the amendment of the Penal Code in 2017 on the idea that generally speaking, those under the age of 18 are so immature that they often depend on materially and mentally those who protect and take care of them in all aspect of life and committing indecent act or sexual intercourse through the use of such dependency prejudices sexual freedom as well as forcible indecency and rape do. Due to this background of establishment of the article, indecency and rape by the guardian can be established even though the victim consented to indecent act or sexual intercourse.
The matter is if the doer is “a person who has a custody of the victim” and if he or she “takes advantage of having authority over the victim”.
Whether the doer can be considered as “a person who has custody” is substantially determined in that he or she actually has custody of a person under the age of 18. For example, it is determined considering if the person concerned takes care of clothing, food and housing, lives together, involves in upbringing, goes through procedure for school or government. While a school or cram school teacher hardly falls into “a person who has custody”, there is a possibility that one who committed indecent act or sexual intercourse against his or her spouse’s child or relative of whom he or she takes care falls under “a person who has custody”.
Whether the doer “takes advantage of having authority” is determined considering the process leading to indecent act or sexual intercourse and the circumstances of ordinary care.
5. Violation of Child Abuse Prevention Act
When an abusive parent approaches his or her child who is under the protection of a shelter and violates the order prohibiting the parents from constantly approaching the child, the parents could be punished by imprisonment with work for not more than one year or a fine of not exceeding 1,000,000 yen. (Article 12(4)(1), 17 of the Child Abuse Prevention Act)
The Child Abuse Prevention Act not only prohibits child abuse but also makes provisions for measures and reporting system to find child abuse early, on-site inspections, protections and independence supports for the abused children. However, the Act makes only the above-mentioned provision regarding penalty for the prohibited conducts.
6. Abandonment by a Person Responsible for Protection (Article 218 of the Penal Code)
When a person responsible for protection of a senile, immature, physically disabled or sick person, abandons, or fails to give necessary protection to such person, the person could be punished by imprisonment with work for not less than three months but not more than five years.
Abandonment by a person responsible for protection is to punish the act that a person responsible for protection such as parents abandons or does not provide for protection necessary for survival of a protected person such as the children.
Abandonment means endangering the lives and bodies of the children who need protection by leaving the children without protection. Abandonment includes not only transferring a person in need of protection locally but also leaving such person on some dangerous place.
The act that a person does not provide for protection necessary for survival indicates not providing protection necessary for survival of the person in need of protection in the absence of distance between the conductor and the person in need of protection.
7. Abandonment Causing Death or Injury by a Person Responsible for Protection (Article 219 of the Penal Code)
A person responsible for protection whose abandonment caused one in need of protection to die or get injured is to be punished by heavier penalty than injury.
The statutory penalty of injury is imprisonment with work for not more than fifteen years or a fine of not exceeding 500,000 yen, and that of injury causing death is imprisonment with work for a definite term of not less than three years. On the other hand, when abandonment or no-protection went no further than causing injury, the statutory penalty is imprisonment with work for not less than three months not more than fifteen years, in cases where abandonment or no-protection cased death, that is imprisonment with work for a definite term of not less than three years.
The intent to abandonment by a person responsible for protection is enough for the crime to be established. It is not necessary to have awareness of injury or death as a result. When he/she has abandoned from the first time with intent to cause death or injury, the perpetrator would be charged with injury, injury causing death, or murder.
Defense Activities in Child Abuse and Child Neglect Cases
1. Claim of Decision Not to Prosecute / Innocence
In spite of no existence of the fact of abuse, a person might be suspected of child abuse. If he/she got arrested on suspicious of abandonment causing injury by a person responsible for protection while his/her child got injured in an accident, a parent/parents would get double shock in the sense that he/she has to face criminal prosecution in addition to a shock that his/her child got injured. Also, the fact that their parents got arrested and detained could have great influence on the children. In this circumstance, a lawyer aim at gaining a decision not to prosecute or acquittal by showing that there was no abuse on a routine basis or living conditions of the time with as objective documents as possible, asserting that there was no act that constitute abandonment nor no-protection, and persuading the public prosecutor or judge with those evidence.
2. Claim of Mitigating Circumstances
It is said that there are many cases that the parents who abandoned or neglected their children had suffered from abuse in the past. In such case, the parents may have problems that they themselves do not realize that they did abandon or neglect their children or they find themselves beating their children while they do not want to do that. In those cases, it is also important to create an environment not to let the parents to do child abuse or neglect with professional counseling or cure. There is little case that the children want severe punishment on their parents even though their parents abused them. The important thing is that the parents never abuse their children again and give their full attention to their children so that they can have the potential for sound development of their children and living condition. The lawyer produces the environment to prevent the recurrence of child abuse or neglect, calls on the parents to reflect on their past conducts, works on a court or investigative authority to be lenient to them.
You can receive the best advice from the lawyers of AICHI Criminal Cases Law Firm who have rich experience in child abuse and child neglect cases. The lawyers specializing in criminal and juvenile cases personally provide with “the free consultation”. When the suspect got arrested, we also provide for “the first interview service” which the lawyers go to the detention cell where the suspect is detained, at the shortest on the day.
