The major law that concerns foreign sex workers working in Japan, their employers and the intermediates are as follows: the Prostitution Prevention Law (1956), the Entertainment and Amusement Trades Law (revised in 2005)*, the Trafficking in Persons Prohibition Law (2005)*,the Immigration Control and Refugee Recognition Law (revised in 2004) and the Penal Code.
In 2005, the Japanese Government established the Trafficking in Persons Prohibition Law, and amended the Entertainment and Amusement Trades Law, the Immigration Control and Refugee Recognition Law and the Penal Code. At the background, there is a global trend to police trafficking in persons. Especially influential to this series of legislation were the evaluation on Japan in the 2004 US State Department’s Trafficking in Persons Report and the approval of the adoption of Optional Protocols of the UN Convention against Transnational Organized Crime in the Japanese Diet.
2. The Content of the above Law and its Effects on Foreign Sex Workers
(1) The Prostitution Prevention Law
The Prostitution Prevention Law is established in 1956. This law prohibits soliciting of, procurement of and offering premises to prostitution regarding women who prostitute as the subject of protection and rehabilitation. In the past, it was applied to Japanese street-workers, but today it is scarcely done so. Currently, this law is often applied to foreign street-workers and men who procure.
If arrested by the procurement of prostitution under this law, the penalty is either imprisonment of 6 months or less or fine of 10,000 yen or less. If the sentence was with probation, the prostitute (presumed woman) is put to aftercare as the subject of protection and rehabilitation and sent to women’s relief and rehabilitation facilities. The facilities are used mostly for foreign street-workers caught under the Prostitution Prevention Law and female victims of domestic violence.
In 2005, 272 persons were charged with the procurement in Japan, and among them 125 were foreigners. Divided by nationality, those who were charged with any offence under the Prostitution Prevention Law consisted of 40 Chinese, 40 Thais, 24 Taiwanese, 8 Koreans, 5 Colombians, and 8 others.
In the first half of this year (2006), 55 foreigners were charged with the procurement of prostitution in public (applied to street-workers and others), the most frequented offence (constituting 62.5 percent of all violations of this Law). Divided by nationality, they consisted of 16 Koreans, 5 Chinese, 10 Taiwanese, 9 Thais, 6 Colombians and 9 others. In the same comparable period of the last year, the numbers of each nationality were 3, 19, 12, 27, 4 and 2, respectively.
(2) The Revised Entertainment and Amusement Trades Law
The entertainment business is regulated under this law including the ‘in-house’ type and the ‘dispatching’ type sex industry, night-clubs, bars and restaurants, Japanese pin-ball parlours, mah-jong parlours, and other entertainment premises. Since its establishment in 1948, the law has repeatedly been amended, the latest occasion being in 2010. In the 2000 amendment, the management of the ‘dispatch’ type sex industry became legal provided that the business notifies itself to an appropriate authority. Due to this, there has been an increase in the number of premises of this type, reaching 3 times more than that of the ‘in-house’ type; there were 6,208 in-house and 16,983 dispatch premises in 2010. However, under the 2005 revision, the regulations became much stricter hitting many shops in the sex industry.
The notable change for policing trafficking in persons was that it became obligatory for the employer to confirm if employees are qualified to remain in Japan, the duration of the qualification validity and if they have work permit. The fine against violation of the obligation to keep the copies of the employees’ passports and registration cards is one million yen or less. Besides, the legal net was cast on business around the sex industry as it became necessary for rented premises to attain permission for the business to run from the property owners, and penalising PR agencies if they advertised shops without fulfilling the set conditions of the notification.
(3) The Trafficking in Persons Prohibition Law
The Trafficking in Persons Prohibition Law was established as the law set to amend a part of the Penal Code in 2005. By this, a new crime against trafficking in persons was established in the Penal Code, penalising selling persons by more than 1 and less than 10 years of imprisonment, buying persons by more than 3 months and less than 5 years of imprisonment, and trade of persons for trafficking them abroad by more than 2 years of imprisonment. If minors are involved, buying gets more than 3 months and less than 7 years, selling for profit, obscene purposes or physical harm gets more than 1 and less than 10 years.
In 2010, there were 37 victims of trafficking in total showing a drastic increase. The number of cases charged was 19 (24 persons charged including 3 intermediate agents) and not changed so much compared with the last year’s counterpart (28 cases) although the number of the arrested was same as 24 persons.
The 37 victims divided by their nationalities were as follows: 24 Filipinas, 1 Korean and 12 Japanese.
The total number of the victims in 2009 was 17, including 4 Filipinas, 2 Japanese, 2 Hong Konger, 1 Taiwanese and 8 Thai.
(4) The Immigration Control and Refugee Recognition Law
This law was amended in view of protecting victims, matching with the establishment of the Trafficking in Persons Prevention Law in 2005. By this, if one is situated in the position of an ‘illegal’ stayer because she fell into a victim of trafficking, she is now subjected to receive permissions to (retrospectively) land Japan and to remain in Japan. After she is granted with the special permission for residence, the victim is entitled to temporary admission to protection facilities in municipality or in the private [NGO] sector, to receive assistances of International Organisation of Migration or of statutory funds to return migration, and to receive support for rehabilitation in her country of origin. Also, she would be able to gain some assistance to file a lawsuit against the offender.
(5) The Revisions of the Law Ministry’s Ordinances
In 2005, a part of the criteria of permission for landing under the category of ‘entertainment’ was amended towards tightening the screening of immigrants with the entertainment visa, of the promoters and of the entertainment business owners. The details include confirmation of the obligation towards compensating the entertainer by more than 200,000 yen per month, questioning if they were involved in trafficking in persons in the past, and/or in ‘illegal’ recruitment of immigrants in the past 5 years. Until today, it is a known fact in Japan that foreign women with entertainment visas for working as dancers or singers in clubs, bars or cabarets have also been working as hostesses, serving alcoholic drinks and chatting with the customers. This is considered to be engaging in activity outside scope permitted by the Immigration Control and Refugee Recognition Law. Thus, many owners of the businesses are said to have the experience of inducing unlawful recruitment. Based on this, the development is that the appearance of foreign entertainers in bars, clubs or cabarets has drastically been reduced by the new regulation in practice.
The number of immigrant women deported for offending the Immigration Control Law by unlawful employment of engaging in servicing customers such as hostess-ing was 2,992 in 2009. This is the largest category of the deported among women ‘illegal’ workers.
3. The Problem of Policing Trafficking
Premises and sex workers unrelated to trafficking in persons are also subjected to the tightening new legislations and their implementations based on the idea that the problem of trafficking in persons is resolved by abolishing sex work all together. Then, sex workers are now faced with decreasing choice of where to work. Sex workers not judged to be the victims of trafficking are arrested and deported as mere criminals. The fact that the law protects the victims alone means firstly to conceal sex workers’ vulnerable position as they work in legal ambivalence; and secondly to burden those who are yet to be the victims with further risk as they need to work with the lack of legal protection.
The NGO workers and others who have been involved in rescuing the victims of trafficking may well in near future face the dead-end of questioning what support is. Because they will have known that there are former victims of trafficking who have been sent back to their native countries and want to migrate [or actually do migrate] again as sex workers. We thus need to stop measuring the necessity of support based on how perfectly the victim fits into an ideal figure of a victim or how serious the damage of the offence. We instead need to create preventative and supportive methods for all sex workers in order to diminish the possibility for any sex worker to be victimised. It is a challenge not to aim for the ‘No Sex Work, No harm’ policy but for tackling the victimisation involving both sex workers as the agent in focus and other supporters.