Criminal jurisdiction over the U.S. service members who sexually assaulted an Okinawan woman in Japan

On November 2, 2012, a U.S. Air Force member stationed at Kadena Air Base in Okinawa, Japan, broke into a family residence and assaulted a teenage boy.  This occurred less than three weeks after the alleged rape of an Okinawa woman by two U.S. sailors.  After the alleged rape by the U.S. sailors on October 16, 2012, the U.S. Armed Forces imposed an 11 PM to 5 AM curfew on all U.S. service members stationed in Japan.  The November 2 incident, however, proved that the curfew was not an effective means to prevent crimes committed by U.S. service members stationed at military bases in Japan.
 
These incidents are nothing new to Okinawans.  In 1995, three U.S. service members stationed at Marine Corps Air Station were charged with sexual assault of a 12-year-old Okinawan girl.  Under the United States-Japan Status of Forces Agreement (SOFA), the U.S. insisted on having criminal jurisdiction over U.S. service members.  This led to massive anti-American demonstrations.  As a consequence of these protest, the U.S. agreed to consider handing over suspects prior to an indictment in serious cases such as a fatal traffic accidents, rape, or murder.

Despite strong sentiments against the presence of U.S. military bases in Japan, both Japan and the U.S. have great interests in keeping the U.S. military bases open.  With threats from China and North Korea, Japan and the U.S. publicly affirmed their alliance.  Following World War II, the U.S. and Japan concluded the SOFA, the framework under which the U.S. armed forces operate within Japan.  Under the original SOFA, which was signed in 1951, the U.S. maintained jurisdiction over U.S. military personnel.  Recently, however, the U.S. tried to be more cooperative than in the past by taking preventive measures such as temporary curfew, bans on alcohol consumption, and increased education efforts in the areas of violence prevention and sexual assault.  Further, SOFA was modified to allow Japan to receive some jurisdictional benefit after the 1995 rape incident.  Nonetheless, the jurisdiction provision of the SOFA continued to generate much controversy. 

The U.S. argues that it should maintain criminal jurisdiction over its military personnel due to fundamental differences between the U.S. and Japanese criminal justice systems.  The proponents for the U.S. maintaining jurisdiction argue that “the Japanese criminal system is . . . incompatible with the American idea of due process and an individual’s right to defend themselves.”  For example, proponents argue that the police and prosecutors only release a suspect upon confession.  Moreover, “detentions in Japan can last as long as 23 days without access to an attorney, and physical abuse and food deprivation are not uncommon."  One legal scholar, however, points out that the Japanese justice system is “fairer than critics allege” because SOFA guarantees the protections of basic rights and Japanese newly reformed interrogation system lessens the potential of abuse in the interrogation process.

In the past, the U.S. experienced a total or partial loss of its foreign military bases: total loss of its French bases in the 1960s and of its Philippine bases in the 1990s, partial loss of its Spanish bases in the 1970s.  Although both the U.S. and Japan have shared security concerns, the Japanese government will not completely ignore the domestic unrest created by anti-American sentiments.  Although the U.S. has preventive measures to avoid the total loss of the U.S. military bases in Japan––that turned out to be not very successful––the U.S. needs to make more efforts to eliminate the tensions by respecting Japanese sovereignty.  Unless the U.S. improves its relations with Japan and creates a more effective alliance, it may experience another total loss of its base again.

Min Ji Ku

Blogger, Criminal Law Brief