Udo Helms. Journal of Homosexuality. Volume 39, Issue 3-4. 2000.
Introduction: The Tôgô Case
When Tôgô Ken, publisher and editor of the magazine The Gay and a well-known figure of the gay community in Japan, returned to Tokyo from San Francisco one February morning in 1987, he was in for an unpleasant surprise. Customs officials at Haneda Municipal Airport confiscated a number of gay magazines and tapes he had bought in the States, claiming these contained obscenity (waisetsu). Considering this incident—a regrettable but insignificant nuisance—Tôgô gave in to the confiscation, only to find himself additionally charged with ‘‘the attempt to import obscene goods into Japan with the possible purpose of redistribution,’’ which in his case carried a fine of 84’000 ¥. It was this ‘‘criminalization’’ that made him search legal assistance.
Japanese trials are lengthy in general, especially when they run through all institutions such as this one did. In the first instance, Tôgô was found guilty; since he edited a gay magazine, it was found that the ‘‘risk’’ of redistribution of the obscene materials was indeed high. Tokyo High Court overruled this decision in 1995, however, arguing that the magazines and tapes had been in his private possession; Tôgô had built his defense on §19 of the International Declaration of Human Rights, which claims the superiority of the private right of freedom of expression over any national law limits, and §21 of the Japanese Constitution, which guarantees freedom of expression as well as the prohibition of censorship (Asai 1995: 10f.). The decision made Tôgô’s trial a landmark case; the importing of obscene goods for private possession would henceforth be allowed. Customs was not willing to give in to this however, and went in revision to the Supreme Court, which reverted to the guilty verdict in 1997 and sentenced Tôgô to pay the fine, and the cost of his litigation, which had exceeded the fine by four times that amount already in 1995 (ibid.).
To western understanding, this incident may appear utterly bizarre at first: How can one of the most advanced nations of the world possibly cling to a criminal charge as ancient as ‘‘obscenity’’? One may wonder whether this incident has an antihomosexual touch, and whether heterosexual ‘‘obscenity’’ is equally persecuted. Since the problematic aspects of the articles in question obviously referred to the depiction of the male body in the nude, and the depiction of male-male sex, there is also the question whether obscenity applies more to gay than heterosexual erotica.
This paper will try to answer these questions; it will not try to construct a legal theory of discrimination of homosexuality in Japan, however. Contrary to most western nations, there have neither been legal prohibitions—nor protections—of homosexuality in Japan, which features a longstanding, if today obliterated, historical record of male homosexuality. Discrimination is mostly related to social or economic aspects, and when evident in the media rather cultivates clichés than endorses contempt. However, I will argue that given the factors and measures applied to the legal interpretation of obscenity today, there is a technical disadvantage of gay film if it involves the depiction of the male sexual organ—the only piece of imagery whose unobstructed depiction in whatever context is to this day prohibited without exception.
Call It Right, Call It Wrong: Obscenity Standards and Authorities
A look at Badi, the most popular gay magazine in Japan, suggests that as far as the contents of pornography in Japan is concerned, anything goes: there are countless depictions of the male body in the nude. These include images of male-male sex variations such as mutual masturbation, oral and anal intercourse, as the penetration of orifices with devices or limbs, sadomasochism including bondage, strangulation and flagellation, and soft paedophilia. Nowhere, however, is the penis depicted unobscured; in photos, the shape of the penis is mostly blackened, in videos covered with a mosaic effect or white dots. In manga, the penis is not fully designed, so that it remains an outline, or the graphic design shows the act of penetration in close-up, so that the full sexual organ is not visible. Most puzzling to the western observer might be that variations of sex that are generally thought to be much more graphic remain unobscured, such as the insertion of limbs or enemas in the anus and sadomasochistic torture. It is quite apparent that the penis is obscene, whereas the arse is not. So what is the legal concept of obscenity?
What It Is All About? The Definition of Obscenity
Officially, censorship does not exist in Japan, which is—next to Germany— the only country which constitutionally forbids it. In both countries, the Allied occupation forces were instrumental in establishing a constitutional freedom of expression to guarantee the development of pluralism in its main adversaries of World War II. However, the Japanese government tried from the very first to obstruct this freedom, fearing its abuse by communist or other unwanted elements. When the Japanese government transmitted a draft of the new constitution to the Allies in 1946, the corresponding §217 bore a limitation: ‘‘Lawful measures to control vulgarities in literature, theater, film and broadcast shall be allowed in order to protect youth and the high public standard of civil behavior.’’ On screening the draft, this was crossed out by pen, with the remark: ‘‘Dangerous, since this could justify police observation.’’ The desired limitation expresses the paternalistic attitude of Japanese authorities, which was to succeed over the intentions of the Allies in the course of the Chatterley trial (Kudo 1987: 106f.).
In early 1950, publisher Oyama Hisajirô and translator Itô Sei of the Japanese version of D. H. Lawrence’s Lady Chatterley’s Lover were charged with distribution of obscenity. Oyama was fined 250,000 ¥ in first instance on January 18th, 1952, but Itô was found not guilty. The court did not define the book as obscene per se, but just twelve passages from it. The next instance upheld Oyama’s fine and additionally asked Itô to pay 100,000 ¥. The Supreme Court refused on March 13th, 1957 to omit these charges (Maki 1964: 3).
The defense referred repeatedly to § 21 of the constitution, i.e., that even if freedom of speech had to be limited for the sake of ‘‘public welfare,’’ there would have to exist a definition of obscenity before the offense; otherwise persecution would be necessarily arbitrary. The Supreme Court rejected this argument, however, since judges would have to consider the interest of the general public, not the right of individuals to err. It justified its decision on the basis of a common sense of shame, which would make ‘‘normal’’ people feel uncomfortable when confronted with descriptions of sexual acts (ibid.: 10). It was acknowledged that the work in question was a piece of art, but at the same time it was determined that art and obscenity would not exclude each other (ibid.: 11).
The definition of obscenity which was developed from the verdict is:
That which produces a sense of shame in a ‘‘normal’’ Japanese person who encounters, in public, an image or text whose primary intention or effect is to stimulate sexual desire. (Beer in Allison 1996: 149)
This definition is so vague that there is a lot of leeway for authorities to decide what is obscene and what is not—indeed so much leeway that they usually refer to precedent cases as a basis of justification for decisions (Okudaira et al. 1986: 130). Nevertheless—or maybe just because of that—the Chatterley verdict was repeatedly used to explain justiciary decisions, as in Tôgô’s case.
The most puzzling fact about the Chatterley trial is, however, why the Occupation Forces allowed its initial start, and even passed sanctions themselves in its context, considering their willingness to guarantee constitutional freedom of speech without limitations as described before. In the year the trial began, GHQ overruled the prohibition of the translation of Norman Mailer’s The Naked and the Dead because there would have been no reactions in the United States upon the release of the book which would have justified such a move (Kudô 1987: 100). However, this was exactly the case with Lady Chatterley’s Lover, which was prohibited in the U.S. until 1959, too.
Lawrence’s work was thereafter adopted to the collection of classic literature of the British publishing house Penguin, which is available internationally (including in Japan). Since this edition contained only text, it was not censored by Customs, which is only responsible for the passing of images. That means that since 1960—three years after the Chatterley verdict—the English version of the book has been available in Japan, whereas the Japanese translation does not contain the twelve ‘‘obscene’’ passages until today. The leading expert on freedom of expression in Japan, Okudaira Yasuhiro, thinks that this absurdity may be the reason for the persistence of §175 Penal Code, which serves as the key reason to justify the Supreme Court‘s decision to prohibit these twelve passages. Its demise would therefore mean to admit a mistake (Okudaira et al. 1986: 91).
Who Does What to Film? Censorship Authorities
There are three authorities which are more or less entitled by law to monitor obscenity in film. The Administration Committee for the Motion Picture Code of Ethics (Eiga Rinri Kanri Iinkai, short Eirin), the body of self-regulation of the Japanese film industry, reviews all domestic and imported films intended for theatrical release. Eirin is a private institution, i.e., submitting films for classification is ‘‘voluntary,’’ whereas Customs’ (Zeikan) inspection of imported films is not; it directly relates to the prohibition of obscenity, although limited to visual material. Even if one or both of these authorities passes a film, the Metropolitan Police (Keishichô) may confiscate this item if it is considered obscene, and therefore a violation of §175 Penal Code—for example, when decisions of Eirin are thought to be too soft or a film is screened in an unauthorized version.
Most problematic is Customs censorship; it is impossible to determine exactly what this institution considers obscene, since there are no rules for the inspection. This means that distribution companies of imported films cannot be sure about possible claims beforehand (Baba 1993: 7). When confronted with this issue, Customs usually replies that sentences of the Supreme Court, most importantly the Chatterley verdict, would have explained what obscenity is—Customs only has to locate it (Shimizu 1997: 48).
Since there are no rules, the Customs Tariff Law of 1910 is the foundation of Customs’ inspection; it was reactivated right after the end of the occupation in 1952. Section 61 of the law states the obligation to declare imported goods, §111 settles the punishment for a violation of this order: a fine of up to 350,000 ¥ or up to three years in prison (Nomura 1970: 274). Section 21 of the law says that ‘‘books, pictures, sculptures and similar things which could endanger public order and customs’’ must not be imported to Japan. Examples are weapons or opium, but not obscenity, which is forbidden due to §175 of the Penal Code. In relation to film, the inspection office (Chôsakan) of Customs explained the following:
Obscene articles are forbidden. In principle, these contain sexual depictions of a non-public character not suitable to normal people, like sexual organs, pubic hair, intercourse or other sexual acts. (Kuwahara 1993: 73)
This is the only explicit formulation in regard to Customs’ film inspection, but not available in official print. Violations carry penalties of a fine of up to 550,000 ¥ or up to five years in prison (Nomura 1970: 275). Until 1957, only Customs inspected imported films, but due to the protests of Eirin, both organs were entitled to carry out inspections—which means that an imported film is revised twice. Another result of the quarrel between these two institutions was that Customs was to rely on ‘‘persons of learning and experience’’ for its decisions; therefore, the ‘‘Discussion Group of Films and other visual materials’’ (Eiga yunyû tô shingikai) came into being in 1961. This counseling body has no veto right to the decisions of the ‘‘Film Office’’ (Eiga bu), however (Beer 1984: 337).
Customs does not perceive itself as an organ of censorship, since it never reviews a film that has not already been censored; when a print arrives in Japan, it is handled by a Customs broker until being passed. Under the responsibility of this company, the print is transported to a laboratory where the distributor has to permit blurs (bokashi), mask effects (masuku gake) or mosaics of ‘‘obscene’’ body parts. Usually the distributor will follow the advice of the technicians who work on precedent without contradiction, which would result in loss of time and money for a second run through Customs if its inspectors should object to the depictions. After this ‘‘treatment,’’ the Customs broker asks for the import certificate; the film is reviewed and, if not objected, passed (Cote 1993: 29).
There are several reasons for this complicated system. First, the system allows Customs to claim that it does not censor, since the distributor delivers the print ‘‘voluntarily’’ to the lab, which receives no specific orders for cuts. Second, if these were passed, the Ministry of Finance would be responsible for an unconstitutional definition of what is obscene and what is not. Third, due to the prolongation of this process, distributors are under considerable financial and schedule pressure and are thus unlikely to challenge Customs’ decisions. Finally, the nonexistence of specific rules and a responsible organ for them ease censorship for the authorities, while artists, industry, or the public find it hard to protest against it (Cote 1993: 27b).
However, following a slow retreat of Customs from film censorship, its officially responsible body Eirin has come under increasing pressure from the film world, mainly because of its high fees and a number of arbitrary decisions. Eirin was created in response to the constitutional freedom of speech, which had come into effect in 1947. The Allies asked the Japanese film industry to introduce a regulation system based on the Production Code of the United States (Itô 1973: 46). A first draft of a film code was already passed in summer 1947 on a meeting of all studio bosses, who founded the ‘‘Sustaining Committee for the Motion Picture Code of Ethics’’ (Eirin Iji Iinkai) which is still responsible for changing the regulations. Eirin started to work in 1949, but Allied film censorship continued until the end of the occupation. In 1956, a series of juvenile delinquency-themed films called taiyôzoku-eiga (‘‘Sungroup-films’’) triggered massive public protest against the leniency of this organ, which up to then was only composed of members of the industry. Eirin was reformed: its principles became more detailed, its chairman being a former Minister of Education, Takahashi Seiichirô (Kuwahara 1993: 54f.). Nevertheless, Eirin has been the focus of constant criticism by both official and pressure groups, blaming the committee of doing too little, and increasingly by the industry itself, regarding the unsatisfactory classification system, its high fees, and its Code of Ethics, which has not been substantially revised since 1959.
In 1996, a series of irritations caused a group of Japanese directors headed by Wakamatsu Kôji, himself one of the most notorious film-makers of Japan, to issue a ‘‘memorandum against censorship in the name of self-regulation,’’ according to which 90% of directors are of the opinion that Eirin should be dissolved:
In a theater, which is separated from the public space, everyone should get what he wants for his entrance fee (…). What is the reason for bokashi, if you still see a naked couple on the screen? They only guarantee that a film is ‘‘officially’’ not obscene. This has nothing to do with the real impression a depiction has. If all films are treated the same and directors are forced to abstain from certain depictions, it is no miracle when audience figures decrease (…). Almost every film is nowadays produced independently. It may have been alright in earlier times that Eirin, which was founded by the big studios, revised their films. But today, these studios almost entirely distribute and exhibit independently produced films. (Wakamatsu 1997:123f)
The key reason for the ‘‘out-of-touchness’’ of Eirin’s regulation rules is that the committee has not only been criticized by authorities for lenient interpretation of its standards, but also persecuted itself by the Metropolitan Police Department (Keishichô). It does not review films, but has the legal authority to confiscate tapes or films screened in public whenever these are found to be obscene. This happened most prominently in 1965, when two reviewers of Eirin were sued for distribution of obscenity along with director Takechi Tetsuji of the ‘‘Anti-American’’ porn ‘‘Black Snow’’ (kuroi yuki), and in 1972, when three reviewers were charged for passing the films of the Nikkatsu porn trial (1972-80). Especially during the latter case, Eirin restricted visual expression drastically—not by amendments to the code itself, but rather by additions to its technical considerations for reviewers. A new chairman in 1978, Arimitsu Jirô, also from the Ministry of Education, introduced rules that quasi-ordered bokashi and decidedly forbade pubic hair, which up to then had been a common understanding (Kuwahara 1993: 238f). What followed was the so-called ‘‘Ice Age’’ of the Japanese film industry: Although the defendants of the Nikkatsu trial were eventually acquitted in 1980, the sheer length of the trial made most pornography producers—the vast majority of the independent film world—compromise with both Eirin’s and Customs’ standards. Bokashi, which had been introduced as a means to increase audience interest, became a standard procedure to avoid obscenity charges, and many films imported from abroad—where the depiction of sexuality in general and homosexuality in particular gained a more serious character—suffered from it.
What Do They Do? Treatment of (Homo)sexual Film in the ‘‘Gay Boom’’
There were not many gay-themed films in Japan prior to the 90s, although the establishment of a gay scene dates back to postwar times. Gay-themed films, as in the west, often exploited homosexuals or stereotyped them to entertain a predominantly straight audience, though there already existed a substantial gay pornography segment. This changed with the emergence of the so-called ‘‘Gay Boom’’ in 1991, triggered by a special issue of the woman’s magazine CREA on homosexuality (Lunsing 1997: 252f.). As other magazines picked up the topic, Fushimi Noriaki’s Private Gay Life became the first gay-themed bestseller, followed one year later by Kakefuda Hiroko, who founded the first (and only) lesbian magazine Labrys (which did not survive, however). Also in 1992, a series of gay-themed independent films appeared, which took a new turn on the (previously rather racy) subject by stressing human relationships. Most notable were Karakara hikaru (Radiant Light, by Matsuoka Joji), in which, after an arranged marriage, a woman allows her husband to carry on his gay relationship; and Okoge (by Nakajima Takehiro), in which a woman befriends gays and eventually allows them to have sex in her apartment. Even gay porn had its first critically acclaimed feature, Soshite bokura wa kawatta (That’s When Things Changed, by Yamazaki Kuninori), which depicted the relationship of two gays in a construction group rather honestly, but still regarded them as disadvantaged (Weisser 1998: 431).
Of biggest public interest was, however, the TV drama Dôsôkai (Alumni Association), screened in autumn 1993 on Nihon Terebi (Lunsing 1997: 275f.). Its success paved the way for directors who identified themselves as gay through their works, which depicted homosexuality from the inside, such as Hashiguchi Ryosuke’s Hatachi no binetsu (Slight Fever of a Twenty Year Old, 1993) and Nagisa no Sindbad (Like Grains of Sand, 1995). The latter film won the Grand Prix at the Rotterdam Film Festival in 1996, and thereby placed gay films from Japan in international discourse. Another gay director who managed to obtain international recognition was Oki Hiroyuki, who rose from the porn business to make both erotic and introverted video films such as Anata ga suki desu (I Like You Very Much, 1994).
The ‘‘Hair Boom’’: Customs Battling Foreign Obscenity
In 1991, the much discussed ‘‘Hair Boom,’’ a series of photobooks which exposed the pubis of more or less famous actresses, led to the legalization of pubic hair and thereby inaugurated a slow retreat of Customs from film censorship. Interesting enough, this occurred at the same time as the ‘‘Gay Boom’’—and was even a part of it, since male nude photo books were for the first time retailing in major bookstores and advertised in subway trains. These photos showed male pubic hair, but not their organs, which were considered too risky by the publishing companies. Therefore, the official definition of the penis as obscene remained unchallenged, whereas the definition concerning pubic hair vanished.
Jacques Rivette’s La Belle Noiseuse was the first theatrically released film with pubic hair, which was altered at only 18 places, a result reached after lengthy discussions between the distribution company Comstock and Customs/Eirin (Cote 1993: 28). Shortly after its unprotested release, Eirin changed its regulations in October 1992, adding the words ‘‘in principle’’ to the prohibition of pubic hair in order to be able to allow their depiction case by case; critics were of the opinion that Eirin tried to keep track with Custom’s liberalization (Baba 1993: 7), and the Metropolitan Police made clear that there was no abolishment of the pubic hair prohibition (Shimizu 1993: 74).
The result was a widespread confusion about what was allowed and what was not; Eirin passed a series of controversial decisions on Japanese films, which sparked debate on the accuracy of its examination practice and led to the aforementioned attempt to disband the organ altogether. Customs sometimes agreed, but more often refused to pass films uncut which depicted pubic hair; the majority of the latter were mainstream gay-related films, with the possible reason that the ‘‘Gay Boom’’ was in full swing, and these films were likely to find a (straight) audience. The most regrettable incident, occurring in March 1993, related to Neil Jordan’s gay-(sub)themed film The Crying Game. Despite personal requests from the director, the film’s pivotal moment—the main character realizing upon undressing his love interest that she is in fact a transsexual, he thereupon throwing up in shock—was masked, thereby rendering the whole scene and topic of the film incomprehensible to the Japanese audience.
However, in the same 1993, a film with an equally transgendered context was the first to pass Customs’ censorship unchanged. After lengthy debates with its distributor Furansu-eiga-sha, Orlando (directed by Sally Potter) kept its pivotal sex change shot, in which actress Tilda Swinton regards her newly female body in a mirror. The Ministry of Finance might have allowed this due to the demise of Kawakita Kazuko, head of that company, on June 7th (its approval came two weeks later). Kawakita had been a dominating force in the Japanese film world, always eager to improve its conditions, so that the fulfillment of her last request may have been an act of condolence. Also, the scene involved the female pubis, whereas the passing of The Crying Game would have allowed the showing of a penis.
Another case is linked to yet another obscenity litigation connected to homosexual art, even more debatable than in Tôgô’s case. In 1992, distributor Uplink had to fog a scene in Looking for Langston by Issac Julian (1988), in which a male nude by Robert Mapplethorpe hung on a wall—at the cost of 200,000 ¥. The irony in this case was that there was at the time a Mapplethorpe exhibition with exactly that photograph in Tokyo (Asai 1995: 8). Nevertheless, Yamashita Yukio, who sent the Whitney Museum’s Mapplethorpe catalogue privately from New York to Japan via DHL that year, found himself confronted with obscenity charges after the carrier’s Japan branch office opened the mail and delivered its contents to Customs. Yamashita challenged a guilty verdict in October 1994 (Asai 1995: 12f.), but it was upheld by Tokyo High Court in October 1995 and is pending decision in the Supreme Court.
A Matter of Face: Eirin’s Trouble in Defining a New Role
Occasionally, it was not Customs who blocked (homo)sexual depictions, but Eirin after Customs had these depictions passed, which occurred more frequently after Orlando. Pubic hair remained an issue for Eirin, although—or because—it lost its importance for Customs. In particularly confrontational 1996, which saw quite a few alienations of Japanese directors by Eirin, a number of imported art films were hit with this issue, most notably Beyond the Clouds by Michelangelo Antonioni and Wim Wenders, whose protests against Eirin’s claims led to their withdrawal of the film, and Total Eclipse by Agnieska Holland, in which not the homosexual relationship between poets Paul Verlaine (David Thewlis) and Arthur Rimbaud (Leonardo di Caprio) was the problem, but a three-second shot of pubic hair of Verlaine’s wife. Since distributor Nippon Herald had already fogged male sexual organs at four places on behalf of Customs, the company was not ready to invest even more money in a ‘‘correction’’ that was thought to be completely irrelevant. Still, the shot was cut to obtain a general classification, which was an economic necessity due to the popularity of di Caprio with juveniles (Baba 1996).
Equally hard hit was the (partially) homoerotic Pillow Book by Peter Greenaway, of Prospero’s Books fame. Although the present head of Eirin, Shimizu Hideo, mentioned in an interview with the author in June 1995 that such an aesthetic depiction of the male nude could be screened in Japan without any problem, the film—which features primarily Japanese men in full frontal nudity—was filled with numerous bokashi.
The reason for Eirin to change pubic hair shots even if these are not blocked by Customs seems to be rivalry at first: as far as imported films are concerned, Customs decides when to allow more leniency, while Eirin can only adopt or not adopt these changes. Not claiming any bokashi of a film coming from Customs may result in a loss of face which would eventually make distributors wonder what authority this organ has to press them into a costly second examination of their prints for gaining access to exhibition; indeed, independent distributors not represented in the Eirin Sustaining Committee thought about establishing their own body of self-regulation in 1997 (Asai 1997: 42f.).
However, there is more to this, since the pubic hair changes were said to have been brokered between Customs and Eirin (Cote 1993: 29). If one institution behaves erratically, the other may benefit from a rise of reputation in the film world, which nowadays generally blames Eirin for being the one who is out of touch. As Customs is perceived less strict than Eirin, the question of whether the former’s censorship is not more unconstitutional than the latter’s becomes more abstract. This allows Customs to insist upon its own standards whenever desired, in the face of a society that has become totally open to just about any kind of sexual expression. Eirin gets the chance to promote itself as a ‘‘guardian of society’’ instead of an alibi for film makers to do whatever they want—an accusation that was brought against the committee whenever a film caused public debate. It thereby strengthens its legally unprotected status by pleasing the authorities, and survives due to their acceptance in spite of being oblivious to the real standards of Japanese society.
The Last Line of Defense: Male Genitalia
The fact that the depiction of male genitalia remain prohibited without exception spurned what was probably the biggest controversy on Customs censorship in the 90s. In October 1997, a film dealing with Dutch colonial rule in Indonesia, Mother Dao, was censored prior to its exhibition at the Yamagata International Documentary Film Festival. The scene in question showed Chinese forced laborers under a shower, exposing their genitals. Director Vincent van Monnikendam commented on the incident in a press conference of the Festival:
This must be the first time that film material of more than thirty years of age is censored (…). To a documentary, which is supposed to show reality, censorship does the utmost harm (…). I am indeed very displeased that a scene which so obviously serves to show the misery of forced laborers is cut in the name of ‘‘obscenity.’’ (Yamanouchi 1997: 42)
The incident shows the crucial dilemma of Customs censorship: on the one hand, it has become more liberal in the course of the 90s as far as nudity and pubic hair are concerned; on the other hand, one piece of imagery was chosen to be unequivocally forbidden, having at least one clear asset that is obscene, the male sexual organ. It has become, so to speak, the last line of defense for Customs. If it were not rigorously censored, the concept of obscenity—which has been narrowed down from nudity to pubic hair to genitalia over the past decade—would collapse.
In relation to the censorship of The Crying Game, Laurent Allary, representative of the French film export union Unifrance in Tokyo, declared that ‘‘a naked woman is more easily accepted as artistic. A naked man is perceived as more unnatural and more aggressive, and it is difficult to convince old-fashioned censors, who are not used to seeing such things, that it is art’’ (Regelman 1993: 68). This is an idea that is obviously shared by many Japanese artists as well, since genitalia were never exposed in male nudes of the ‘‘hair boom,’’ contrary to the pubis of women. This disadvantage is easy to explain. Pubic hair hides female genitalia; were it shaved, or were the crotch shot in a position that clearly exhibits the vulva, it would still be considered obscene. But as long as pubic hair in itself causes an erotic sensation, this is unnecessary. A nude male body, however, cannot be shot without its protruding genitalia; therefore, changes to the image are necessary and more likely to be automatically ordered, whereas the degree of explicitness of female nudity gives room for discussing these decisions. This is the technical disadvantage of gay films I mentioned in the introduction, although it may just as well apply to lesbian film. In recent years, the Tokyo International Gay and Lesbian Film Festival had only one film, a lesbian film, stopped at Narita airport. The reason for this might be that the Festival tries to work pre-emptively, advising its guests to conceal films they anticipate to be problematic, constantly pondering the odds and risks of sexual expression—just like artists in the gay video and film scene, who try to find means of telling their stories and/or showing as much as possible without really challenging the system.
This is by no means a unique Japanese phenomenon—the depiction of a penis is still unthinkable in Hollywood, too. It was not possible for director Paul Thomas Anderson to have his star Mark Wahlberg display his real penis in the final shot of Boogie Nights (1998). Instead, internal Hollywood standards forced him to use a bogus penis for that scene. In the Japanese version, however, this artificial penis was—as anyone might expect—blurred, which made many spectators believe that Wahlberg was a, well, truly impressive actor. At present, even an artificial penis cannot be brought upon the Japanese public.
So What’s the Point of It All? Explanations for the Obscenity Issue
The official explanation of the prohibition of obscenity, protecting the moral values of Japanese society in respect to an individual sense of shame in ‘‘normal’’ people, is of course very incoherent considering the fact that Japan is a country in which virtually every aspect of sexuality is highly commercialized. From animated ad cards for hostess clubs lying around in telephone boxes to TV shows which have the camera peeking up girls’ skirts while playing basketball. Contrary to pornography in western countries, the Japanese variants are both more playful and more available, and are therefore less likely to reek of forbidden pleasures. They are a part of Japan’s everyday culture. So what makes authorities decide that genitalia are too much? One possible approach claims that this is because they are authorities, which need to effectively demonstrate their existence to prove—or fantasize—that they have a say in the creation of society.
The Authority Argument
The Japanese Constitution of postwar Japan had censorship abolished, like any other means by the state to suppress freedom of expression. Only one means erroneously remained: §175. It is therefore no surprise that the state clings so desperately to this article: It is its only means to prove its authority and deny the people freedom of expression. (Oshima 1988: 210)
These were the closing phrases of Oshima Nagisa at his obscenity trial, which concerned a book with the script and stills from his film The Realm of the Senses (1976), though not the film itself, which had been vigorously cut by Customs on its reentry to Japan—where Oshima could not have his radical vision of erotic obsession processed without risking persecution. Having studied law in his student days, Oshima willingly searched for a confrontation with the authorities, to whom he wanted to issue a definition of obscenity in regard to film; he did not succeed, but used the platform of the trial to deliver a speech which all but shattered the public perception of obscenity as vice, and almost ruefully declared that self-regulation cannot work under such circumstances:
If we look at the history of repression of police and persecution against cinema, we find two characteristic patterns: First, justice always strikes as soon as a new form of sexual expression appears. (…) Second, with every incident of this kind they gain ground (…). It seems that the Metropolitan Police arrives more and more at changing the organ of film censorship (i.e., Eirin) and to bring it under its control. (Oshima 1988: 206)
This corresponds to the previous idea that Eirin and Customs may actually pretend to their antagonism over the pubic hair issue in order to strengthen each others’ positions. For scholars like the aforementioned Okudaira Yasuhiro, censorship has not the aim to protect society, but to secure the authority of its institutions against the public in a way that is visible in mainstream culture (Allison 1996: 155). The more sexuality is present, the more its lack of genitalia is obvious, the more everybody knows who is running the show— in striking contrast to western countries, where censorship tries to hide and remain hidden. This may explain why it is easier to attack censorship there, since it is easier to question the justification of authorities who want to remain in the dark—as they want certain things to remain dark—as opposed to those who act in public.
The Economic Argument
The packaging of bodily exposure that decenters or obscures genitalia (…) is big business. It sells products and is productive itself of a construction of leisure that is sold to Japanese consumers as escapist recreation. (…) The state has in fact endorsed and encouraged a sexual economy of a particular order, one that evades the state surveillance of pubic realism and therefore constructs the stimulation and simulation of sexuality as a fantasy (…). Such mass sexual tropes as voyeurism, infantilization, and sadomasochism are something other than ‘‘obscene’’ and other than ‘‘real.’’ (Allison 1996: 150)
This definition makes it possible to regard Customs censorship as a means of protection of the domestic sexual fantasy market. On the one hand, by denying products which violate obscenity rules access to the Japanese market of sexual fantasies, the domestic contributors to this market are protected— and are therefore maybe all too willing to accept the accompanying compromises on what they can and cannot broker to the public. On the other hand, the cultivation of a domestic culture of sexual fantasies makes it harder for foreign products to appeal to Japanese customers, which explains the genuine plethora of ‘‘typical’’ Japanese products in both hetero-and homosexual pornography, far outweighing the representation of porn from abroad. And with a reason: If the degree of stimulation is much higher in the domestic product, why turn to the imported product if all it offers is the unobstructed sight of an item anyone knows?
In addition, although it is certainly unconstitutional, censorship in Japan has not led to any more regrettable effects than the liberation of pornography in western culture, especially in gay context. Whereas sexualization has deeply penetrated gay communities to a degree that personal identification with the sexual preference has become a paramount public image—if not to say, ideal—of homosexuals, the Japanese economics of sex as fantasy have helped to expand the possibilities of what is acceptable for the majority. For example, both hetero- and homosexual persons in western countries may feel confronted with the necessity to draw a line between what he/she prefers or tolerates and what he/she rejects within the realm of sexual fantasies, such as the moral dilemma of paedophilia, because these fantasies are perceived—via pornography, news or other means—as real. In Japan, however, where the reality of the sexual act is obscured, the readiness to tolerate or enjoy such fantasies—but not the real thing—is higher, which means they can be effectively marketed:
By restricting one bodily sight/site, the state permits and stimulates the mass production of a host of others. Restrictive laws are actually a boost to the big business of sexual fantasy-making in Japan, which, in the format of ‘‘fantasy,’’ can be marketed to children as well as adults. (Allison 1996: 150)
This has the positive side-effect that childhood and sexuality are not artificially separated from each other, as illustrated by the extremely popular anime Sailor Moon, which contains homosexual lead characters. In the dubbed versions distributed in the west, these characters’ sexuality has been unequivocally changed, indicating that western broadcast stations are shying away from the topic of homosexuality in a children’s program, whereas Japanese do not. Sex is not considered as harmful to juveniles in Japan, which explains why sexually stimulating photos of adolescents are printed in gay magazines like Badi without any problem (Lunsing 1997: 275)—and the obscenity issue might assist in that. The problem with this is that fantasy justifies a sexual abuse, however docile—just like gays accuse lady’s manga, a subgenre of comics aimed at women in their 20s, of abusing homosexual themes for satisfying women, who counter that this would be a fantasy, and fantasy should be allowed to be free (ibid.: 274).
Conclusion: Is There a Homophobic Intent in Obscenity Laws or Not?
There are two ways in which the obscenity laws influence homosexual imagery, as they influence sexual images in general: directly suppressive, by prohibiting the depiction of genitalia and, if considered obscene, pubic hair; and indirectly creative, by urging the industry to substitute genitalia with graphic violence, androgyneity, or other means. As stated before, this does not necessarily have to be regarded as bad; as outmoded as the prohibition of genitalia may seem in regard to the plethora of Japanese sexual fantasies, it might have helped to enable the playfulness of Japan’s sexual culture, which, while certainly abusing and stereotyping its objects, at least prevents sexual frustration. This could explain why there is far less sexual violence, though arguably more harassment, in Japan than in the United States, for example.
To answer the initial question of whether there is a ‘‘line’’ into obscenity that applies more to homo- than heterosexual film: yes and no. The problem is that as soon as a film is described as gay-themed, Customs will automatically assume that it will show a penis; and since that would be obscene, the authorities will inspect gay films closer than others. That means, if the day should come that a penis can be shown in Japan, it is unlikely to pass in a gay-themed context. Thus, by assuming the worst from films of this genre, one might say that there is a disadvantageous treatment of homosexuality in film.
However, the abundant presence of homosexual topics in Japanese culture for women—as in lady’s manga—does not allow to interpret this caution as a discrimination against homosexuality as such. It is clearly directed against the penis, and the problems with homosexuality are limited to that issue—as the often daring story contents of gay films in Japan shows, Eirin’s concern is directed to the same issue.
Apart from the fact that the penis is the ultimate obscenity, there is no particular suppression of homosexuality as such. The limitations are enforced within the frame of the obscenity regulations; at least officially, there is no difference between the depiction of the male body in heterosexual or homosexual acts. In practice, however, different treatments of male/female genitalia (as in Crying Game versus Orlando) suggest a homophobic intent, that is, to prevent the sexualization of the male body to a degree similar to that of the female body. Japan is paternalistic, and male authority is not just exposed by docile female behavior and prevalent sexual harassment; it is represented by men who feel they have the responsibility to protect themselves and their peer group from any tendency that might put the values which placed them in power of society.