There are two major laws in Japan which affect the sex industry and its workers: the Prostitution Prevention Law (Baishun Boshi Ho, promulgated 1956; effective 1958) and the Entertainment Business Law (FUzoku EigyO Ho, 1948). The Prostitution Prevention Law is the basic law against prostitution and its history goes back to the end of the Second World War. Until that time, there had been a system of state licensed prostitution in Japan since the end of the nineteenth century (Fujime 1997: 91—92; Imanishi 2007: 225—30). Athough the Supreme Command of the Allied Forces (SCAP) ordered the abolition of licensed prostitution during the period of Allied Occupation (1945—52), it took a decade more to pass the Prostitution Prevention Law after negotiation between the government, parliamentarians, business owners and workers (Fujime 1997: 394—401; on sex work in occupied Japan and around military bases in contemporary Japan, see Mackie and Tanji in this volume). The Prostitution Prevention Law was enacted in 1956 (effective 1958) and outlawed prostitution, which it defined as ‘having sexual intercourse with non-specified partner(s) for compensation or the promise of such’ (Article 2). Prostitution was said to ‘harm the dignity of the individual, to be against sexual virtue, and disrupt the proper morals of society’ (Article 1).
Prostitution, however, is still practised on a commercial basis today. The Prostitution Prevention Law does not contain penalties against simple violations of Article 1 or 2, as the law’s main aim is not to punish prostitutes (or customers) but to preserve public morals and penalise third parties profiting from prostitution. In combination with the Prostitution Prevention Law, the Entertainment Business Law regulates and controls the sex industry. Prostitution has continued to thrive in the niche between the two laws. The Entertainment Business Law was enacted in 1948 when the post-war parliament decided that it was necessary to retain police control over sex-related entertainment which had been in place since before the war. This was in order to prevent what were seen as offences against public morals such as prostitution and gambling being conducted in entertainment premises (Nagai 2002: 69—81). Rather than simply preventing such offences, however, this law allows specific sex-related entertainment and commercial premises to run provided they are registered with the municipal public safety commission. The objective is ‘to preserve good public morals and a hygienic environment as well as preventing acts which hinder the healthy upbringing of youth’ (Article 1). Together with the Prostitution Prevention Law, this law thus serves to mark boundaries between what is ‘good’ and ‘bad’ for ‘public morals’ in Japanese society, especially regarding commercial sexual services. At the same time, it enables businesses to trade vast quantities and various kinds of sexual services perfectly legally.
What is worth noting is the emergence of a quasi-criminal and quasi-legal grey area between the two laws. For instance, a sex worker can legally work at a registered ‘soap land’, which is described in the Entertainment and Business Law as a ‘public bathhouse with private compartments’ (Article 2—6) to assist an individual customer to have a bath. The prostitute is defined by the law as female and the customer as ‘of the opposite sex’. Given the circumstances, the two parties might have sexual intercourse. If this was a regular official service, the premises, the worker and the customer would be breaking the Prostitution Prevention Law. It is widely understood by people involved in the sex industry, however, that the police scarcely ever prosecute them, not only because it is nearly impossible to establish evidence, but also because they would be able to evade the charge by stating that the worker and the customer ‘fell in love on the spot and privately consented to have intercourse’ (Mizushima 2008: 34; Kaname and Mizushima 2005: 195). This logic would protect the worker legally in pretending not to offer prostitution. In the long run, however, it has become clear that there is significant danger for the worker in this grey area as the working of this logic actually depends on the interpretation on the policing side. If the police for any reason decide that she actually is involved in illegal conduct she might well be the one arrested even if she has, for instance, been victimised by a customer’s violence. I will discuss this point further below.
The Entertainment Business Law has gone through frequent amendments with changes according to social and technological trends. Each time new services such as ‘soap lands’, striptease theatres, ‘love hotels’, call girl services (known as ‘delivery health’) and porn image delivery services have come into fashion, the targets of regulation and control have shifted. At these times, what exactly is in the grey area between these regulated legal activities and criminal activities under the Prostitution Prevention Law also shifts. A researcher on the adult entertainment business, Matsuzawa Kureichi, argued that the grey area used to work as a buffer zone in which a business, newly criminalised as the law changed, would nevertheless not be prosecuted and would be allowed to stay in business under unofficial police observation unless it went too far beyond the norms of the industry. By creating this space, the frontline municipal police could maintain negotiation with the business at the same time as preventing these newly illegal businesses which were constantly being created from going underground and completely out of their control (Matsuzawa 2012: 73). The grey area, however, ceased to work like this as the policing of the sex industry became more stringent around 2004 when anti-trafficking measures were enacted.