Osaka District Public Prosecutor’s Office to conduct a “representative hearing” into sexual offences against people with intellectual disabilities, with a hope to relieve “mental burden”

By Barrier Free Japan with extracts from The Yomiuri Shimbun

June 15 2021

OSAKA– In the investigation of sex crimes in which people with intellectual disabilities have suffered damage, a “representative hearing” in which one investigator is in principle responsible for hearing the damage situation will be held at the Osaka District Prosecutor’s Office soon. The initiative is to introduced this spring, as accounts have changed due to the alternate testimony of police officers and prosecutors, and in some cases it was not possible to make a case. Attention is focused on attempts to keep the victims of sexual violence from being buried.

The Osaka District Public Prosecutor’s Office is collaborating with the Osaka Prefectural Police Department. The focus concerns victims of sex crimes with intellectual, and a senior prosecutor said, “The characteristics and degree of disability vary from person to person. We are carefully considering what method is appropriate.”

The representative hearing is also called a “judicial interview”. While general hearings of victims are conducted by police officers and prosecutors in order, in principle, one prosecutor completes hearings of representatives one time.

The aim is to alleviate the mental burden by talking about painful experiences many times. Although there have been individual examples so far, the Ministry of Justice has begun trials at 13 district public prosecutors nationwide, including Osaka, from this year.

Another purpose is the effect of increasing the credibility of the testimony. According to a Ministry of Justice investigation, of the 548 sexual offenses that the public prosecutor’s office filed in 2018 due to insufficient charges, 61 (60) were victims of disabilities. The most common reasons for non-indictment were that the testimony was “inconsistent with objective evidence” (17 people), “suspicion of lies and memory mistakes” (11 people), and “the testimony has a transition that cannot be overlooked” (10 people).

Fujiko Yamada, a physician and the president of a non-profit organization who is familiar with representative interviews, said, “(People with disabilities) sometimes think that if the same question is asked repeatedly, the previous answer was ‘not trusted’ or ‘not what they expected,’ so they change their answer to match the intention of the interviewer.

Hitomi Sugiura, a lawyer who has represented people with disabilities who have been sexually assaulted, also explained the difficulty: “Sex crimes often occur in a locked room with no witnesses, and if the victim is a person with a disability, prosecutors are cautious about prosecuting unless the physical evidence is particularly solid.

In some of the past individual cases, the testimony of the victim at the representative hearing was considered more credible than the court testimony given in front of the judge.

In March 2007, the Shizuoka District Court acquitted a father accused of rape and sexual intercourse with his mildly mentally retarded 12-year-old daughter.

On the other hand, in December last year, the Tokyo High Court, based on the characteristics of the elder daughter’s disability, ruled that “it is unreasonable to consider her testimony as immediately changing, and that the way the judge of the first trial conducted the examination was inappropriate.

In principle, the representative interviews are recorded. If the testimonies change in court, it is intended that the court can ask to adopt them as evidence.

Hiroshi Wakinaka, a professor of developmental psychology at Otani University, said, “The challenge is to increase the credibility of the testimony. Listeners need to be aware of neutrality without prejudice.”

Kumiko Fujiwara, president of the DPI Network for Women with Disabilities (Tokyo), an organization for people with disabilities, said, “There are still a lot of buried damages. I hope that the introduction of representative hearings will lead to more cases being filed.”