Act on the Prevention of Spousal Violence and the Protection of Victims

Template:日本の法令Act on the Prevention of Spousal Violence and the Protection of Victims (Act No. 31 of April 13, 2001) is a Japanese law that aims to prevent spousal violence and protect victims by establishing a system for reporting, consultation, protection, and self-reliance support in relation to domestic violence. Until the law was amended in 2014, it was called the "Act on the Prevention of Spousal Violence and the Protection of Victims". It is commonly known as the Domestic Violence Prevention Law.

There are procedures for the protection of victims of domestic violence and the establishment of a self-reliance support system, centering on the Spousal Violence Counseling and Support Center, and procedures for protection orders in the courts. In the following, the focus will be on the "protection orders" procedures stipulated in this law.

Overview

On April 3, 2001, the Act was submitted to the 151st session of the Diet by the Chairman of the House of Councillors' Committee on Symbiotic Society. The Act was approved on April 6 of the same year, promulgated on April 13 of the same year, and came into effect on October 13 of the same year, with the exception of some provisions, and on April 1, 2002, the provisions on Spousal Violence Counseling and Support Center came into effect.

The revised law, which was promulgated on June 2, 2004 and came into effect on December 2, 2004, provides for the following matters

• The definition of domestic violence has been expanded to include psychological violence. The definition of domestic violence has been expanded to include psychological violence, as well as physical violence that continues after divorce or annulment
• Prohibiting the perpetrator from roaming around the vicinity of the residence where the victim and the perpetrator live together has been added to the scope of the eviction order.
• A system for restraining orders and re-petitions against children was added

The revised law, which was promulgated on July 6, 2007 and came into effect on January 6, 2008, provides for the following matters.

• Victims of threats of harm to life or limb are added to the scope of petition for protection orders
• Adds a system to order the perpetrator not to follow the victim for six months from the day protection orders takes effect
• Adds a new system to prohibit the perpetrator from following the victim's relatives around at their addresses, etc., or vandalizing the vicinity of where the relatives are usually located

The revised law, which was promulgated on July 3, 2013 and came into effect on January 3, 2014, provides for the following matters

• Title amended to "Act on the Prevention of Spousal Violence and the Protection of Victims"
• Added that the law shall apply mutatis mutandis to violence by a person who is in a relationship with a person with whom he or she shares a common living space (excluding those who do not live a common life similar to a common life in marriage).

Violence subject to protection orders

Protection orders are applicable to "spousal violence against the body or threats to the life, etc." (Article 10 of the Law). "Threats to life, etc." means "threats made with notice of harm to the life or body of the victim."

The term "spouse" as used in this law includes "a person who is not registered as married, but is in fact in a situation similar to that of marriage" (a so-called de facto marriage). In addition, in light of the fact that there are cases where there is a risk of continued violence after divorce, even after divorce or annulment of marriage, if there is a significant risk of continued further violence by the former spouse, the case will be subject to protection orders. In addition, according to the revised law that came into effect on January 3, 2014, a person who has a relationship with a person with whom he or she shares a common living space (excluding those who do not live a common life similar to a common life in marriage) is subject to protection orders.  Violence from a mere lover (dating violence) is not subject to protection orders.

In addition, "spouses," whether male or female, are subject to protection orders in cases of violence or threats by husbands against wives, as well as violence or threats by wives against husbands.

The original purpose of the law was to prevent "gender violence," which is violence resulting from sex discrimination, but it has become a law against mutual violence between spouses.

Types of protection orders

There are the following types of protective orders

Restraining order (Article 10, Paragraph 1, Item 1 of the Law)

A judicial order prohibiting the victim from following him/her around or loitering in the vicinity of the victim's residence, place of work, or other places where the victim is usually located for a period of six months (excluding the residence where the victim and his/her spouse live together).

Eviction order (Article 10, Paragraph 1, Item 2 of the Law)

Prohibits the victim from leaving the residence where he or she lives together with the perpetrator and from loitering in the vicinity of the residence for a period of two months. This system is designed to ensure that the victim has time to move out in order to escape from the violence, and is not designed for the victim to continue living in the residence that the perpetrator has moved out of.

Restraining order against access to the child (Article 10, Paragraph 2 of the Law)

In cases where the victim lives together with a minor child, the court may issue a restraining order against the victim to prevent the victim from following the child around at the child's residence (excluding the residence where the victim and the perpetrator live together), school or other places where the child goes to school, or from wandering around the vicinity of the child's residence, school or other places where the child is usually located, while the restraining order mentioned above is in effect.

Even if the above-mentioned restraining order has been issued, if the victim lives with the minor child, the effect of the restraining order may be diminished by the perpetrator's attempt to bring the child back. This system is designed to avoid such a fear and is not an independent system. If the child in question is 15 years of age or older, it is only with the consent of the child.

Pre-Petition Procedures

Before filing a petition for protection orders, one of the following procedures must first be followed.

• To consult with the Spousal Violence Counseling and Support Center or the police, or to seek assistance or protection.
• Obtain a notary's certification (Article 58-2, Paragraph 1 of the Notary Act) for the document containing the victim's statement regarding the circumstances of spousal violence.

In reality, the latter procedure is costly, so the former procedure is usually adopted.

The term "Spousal Violence Counseling and Support Center" here may seem to be the name of a facility, but it is not the name of a facility but the name of its function.

Facilities with the functions of a center are expected to include women's consultation offices established by prefectures and facilities established independently by municipalities, but since the actual situation differs from region to region, it is necessary to confirm in advance before filing a petition.

Spousal Violence Counseling and Support Center is defined as an institution that provides counseling on spousal violence, temporary protection for victims in emergency cases, and support for self-reliance afterwards.

In 2019, the number of inquiry cases to Spousal Violence Counseling and Support Center was 119,276, and the number of police’s consultation on spousal violence was 82,207<ref>JAFAREC website https://jafarec.org/statistics/</ref>.

Petition

Jurisdiction

A petition for protection orders must be filed with the district court that has jurisdiction over the following places (Article 11 of the Law). The family court has no jurisdiction.

• Location of the dddress of the other party (or residence if the other party does not have a domicile in Japan or if the other party's domicile is unknown)
• Location of the address or place of residence of the petitioner
• Location of the place where the physical violence or threats to life, etc. by the spouse pertaining to the petition was committed

The unique feature of this law is that it assumes that the victim is living in shelter from the perpetrator, and for the convenience of the victim, it recognizes the jurisdiction of the court that has jurisdiction over the location of the petitioner's residence.

Matters to be included in the petition, attached materials, etc.

Two copies of the petition and attached materials shall be submitted, except for a copy of the family register and a copy of the resident certificate.

One copy is to be used and preserved by the court as a case record, and the other copy is to be sent by the court to the other party to the petition.

Matters to be included in the petition

The items to be included in a petition for protection orders are as follows (Article 12, Item 1 of the Law, Article 1 of the Rules), but each court prepares a form that covers the items to be included, so basically you can get the form from the court.

• Names and addresses of the parties (and their representatives)
• Purpose and reason for the petition
• Indication of any protection order cases that are already pending or for which a protection order has already been issued
• Circumstances under which the person was subjected to physical violence by his/her spouse
• Circumstances at the time of filing the petition that are sufficient to indicate that there is a significant risk of serious harm to life or body due to further physical violence by the spouse
• Whether or not the victim has consulted with an official of a Spousal Violence Counseling and Support Center or a police official concerning physical violence by a spouse (in cases where the victim divorced or annulled the marriage after being subjected to physical violence by a spouse, this includes physical violence that the victim continues to receive from the former spouse). And if so, the following matters:
  • The name of the Spousal Violence Counseling and Support Center or the police station to which the police officer belongs
  • The date, time and place of the consultation or request for assistance or protection
  • The details of the consultation or requested assistance or protection
  • Details of the measures taken in response to the consultation or the petitioner's request
• If petitioning for a restraining order against the child, the child's name and date of birth
• In the case of a petition for a restraining order against the child, the circumstances under which it is deemed necessary to issue such an order in order to prevent the victim from being forced to visit her spouse with regard to the child living with her

Attached materials

• A copy of the family register and a copy of the certificate of residence (necessary for identifying the parties and examining the requirements of the petition, etc.)
• Documents that will serve as evidence for the hearing of the protection orders
• In cases where consultation, etc. has not been received from the staff of the Spousal Violence Counseling and Support Center or the police staff, a document certified by a notary (Article 12, Paragraph 2 of the Law)
• In the case of a petition for a restraining order against a minor child of 15 years of age or older, the written consent of the child.

Petition fee, etc.

• Affix a revenue stamp worth 1,000 yen as a petition fee to the petition (Article 3, Paragraph 1, Schedule 1, Paragraph 16 of the Act on Costs of Civil Litigation, etc.). Although two copies of the petition should be made, only one copy should be affixed with a revenue stamp.
• Attach postage stamps of an equivalent amount to cover the cost of postage (each court has different amounts, so check before or at the time of filing the petition).

False allegations

A person who files a petition for a protection order based on a petition containing false statements shall be subject to a fine of not more than 100,000 yen.

Since the statutory penalty for filing a false complaint is between 3 months and 10 years imprisonment, this may fall under the category of imbalance of punishment.

Pre-hearing interview

In most cases, when the court accepts the petition, the judge will conduct an interview and ask the petitioner to explain the circumstances of the violence. In addition, since the court may provide security on the date of the hearing of the other party, the court clerk may ask the petitioner if there are circumstances that require security.

At this point, if it is judged that it is impossible to issue protection orders due to circumstances such as ambiguity in the petitioner's statement, the petitioner may be urged to withdraw the petition.

Judicial proceeding

Ordering documents from the court clerk

In cases where there is a statement of fact in the petition, such as a consultation regarding spousal violence against the body, the court clerk will request the staff of the Spousal Violence Counseling and Support Center or the police staff to submit a document describing the circumstances of the consultation, etc. and the measures taken in response (Article 14, Paragraph 2 of the Law) before or after the pre-hearing interview.

The document submitted in this way will be used as a document for issuing protection orders, so naturally this document will be subject to inspection by the other party.

Interrogation of the other party, etc.

After the petitioner's interview, since it is necessary to give the other party an opportunity to defend himself/herself, the court clerk shall designate a hearing date on which the other party can be present, and the court clerk shall summon the other party to appear on the hearing date (at the time of summoning, the petition and attached materials shall be sent to the other party).

The date of the hearing must be held in order to give the other party an opportunity to defend himself/herself, but it may be omitted if there are circumstances where the purpose of the petition for a protection order cannot be achieved by going through the date (Article 14, Paragraph 1 of the Act).

The law also provides for a hearing on a date for oral argument on which both parties appear, but such dates are rarely held.

Issuance and Notification of Protection Orders

If, as a result of the interrogation of the other party, the court finds that there is a significant risk that the victim will suffer serious harm to her life or body as a result of further physical violence by her spouse, it shall issue a protection order. In addition, in the case of a restraining order against a child, it is necessary to prevent the victim from being forced to visit her spouse with regard to the child who is living with her.

Notice of a protection order to the other party shall be made by serving the written order of the protection order on the other party or by delivering the order on the date for oral argument or the date for interrogation, and shall become effective upon notice to the other party (Article 15, paragraph 2).

In practice, notice is often given on the date of interrogation (because the court will not know the date of service until a few days later if notice is given by way of service of a written decision). However, in some cases, if the other party's credibility cannot be established by the hearing alone, the petitioner may be asked for further information, and in such cases, notice will be given by service of a written decision.

If the other party is absent on the date of the hearing, service of process shall be made.

Effect of Violation of Protection Orders

It is punishable by imprisonment for not more than one year or a fine of not more than one million yen (Article 29). The effectiveness of a protection order is ensured by punishment and is not subject to compulsory execution under the Civil Execution Law (Article 15, Paragraph 4).

Immediate Protest

Against a judicial decision on a petition for protection orders, an immediate appeal is possible from the other party if the petition is admitted, or from the petitioner if the petition is dismissed (Article 16, Paragraph 1).

Revocation of Protection Orders

Even when the trial of protection orders becomes final, there is no point in allowing it to continue in effect if there is no longer a need for it, since it is a trial that restricts the freedom of action of the alleged perpetrator. For this reason, the system of revocation of protection orders is available (Article 17 of the Law).

However, if the victim files a petition for revocation, the revocation is unconditional, whereas if the perpetrator files a petition for revocation, it is necessary to confirm that three months have passed since the restraining order took effect and two weeks have passed since the deportation order took effect, and that the victim has no objection to the revocation (Article 17, Paragraph 1 of the Law).

re-petition

It is possible, in a manner of speaking, to file another petition for a protection order on the basis of the same facts of violence that were the grounds for the first petition for a protection order.

However, in the case of a second petition for an eviction order, the following requirements are defined (Article 18, Paragraph 1 of the Law) in terms of a system to ensure that the victim has time to relocate.

• When the victim who intends to move out of the residence that he/she and his/her spouse share as their main home is unable to complete the move out of the residence by the day on which two months have elapsed from the day on which the previous order became effective due to force majeure reasons, or when there are other circumstances that make it necessary to re-issue an eviction order pursuant to the provisions of the same item
• It is not recognized that the issuance of the said order will cause particularly significant hindrance to the life of the petitioning spouse

If the petitioner is subjected to new violence after a deportation order has been issued, the petition will be based on a different set of facts than the violence that was the reason for the first deportation order petition, so there are no restrictions as described above.