Possible Criminal Penalties in Japan for Parental Abduction To Japan

In 2000, the police arrested Engle Nieman, the father of a child with a Japanese woman. He was trying to leave the country with her. According to the article "Marbury v. Madison and The Matrix: What Child Custody and Visitation in Japan Show us about the Japanese Court System," written by a western lawyer fluent in Japanese, the police arrested Mr. Nieman for the crime of Abduction or Enticement for Purposes of Removing from Japan (nihon kokugo iso- mokuteki ryakushu oyobi yu-kai). This is a violation of Article 226(1) of the Penal Code, a pre-war law "originally intended to prevent prostitution" by preventing minors from being transported overseas.  Engle. Nieman's conviction was confirmed by the Supreme Court of Japan in 2003.  (Something we regard as a bad decision by a Japanese court, to say the least.)

In 2000, it seems that Article 226 of the Penal Code applied only if you removed the person FROM JAPAN. (And perhaps only for the purpose of prostitution, at least until the law was used against Engle Nieman who was not likely trying to remove his own daughter from Japan for prostitution.) But on June 22, 2005, Article 226 of the Japanese Penal Code was changed, such that "removing a person from the country they are in" is now a crime, regardless of whether or not that country was Japan.  The list of recent changes to this law (cached copy) as well as the updated version of the changed articles (cached copy) can be found on the Ministry of Justice website in the respective links in this sentence.  The entire Penal Code - Chapter 33 - Crimes of Kidnapping, Abduction and Human Trafficking is also available on this site.  The following table summarizes the relevant changes made in Jun 2005.

Although this law may have originally been changed to appease the international community about Japan getting tough on international trafficking of women for prostitution, it is possible that you could apply it to parental kidnapping also, using the Engle Nieman case as a precedent.  Note that your child would have to have been abducted after the changes on June 22, 2005.  The advantage in this is that you can get the police involved immediately and begin prosecuting for a crime, without having to get the Family Courts involved.  The negative is of course that you would need a Japanese prosecutor and the police to agree.

For people trying to prevent a Japanese parent from abducting their child out of another country back to Japan, a criminal penalty like this is an additional threat.  Without this, there are only civil penalties, which as we know, Japanese courts cannot enforce.  Print out the Penal Code - Chapter 33 - Crimes of Kidnapping, Abduction and Human Trafficking and bring it in to Japanese embassies in your area. Write down the name of whomever you talk to.  Better yet, bring a tape recorder and record the conversation. Inform them of your intent to prosecute anyone who helps their child leave your country, in violation of a court order for custody or a restraining order against travel.  This is something you can prosecute for in Japan, rather than in the foreign country where the consular officer may have diplomatic immunity.

Finally, note that the Supreme Court recently made a decision based partially on Article 224, such that "Where the father took away by physical force his two-year-old child who was in the custody of the mother living separately from him, if there were no special circumstances in which it was actually necessary for the father to commit such an act and the act was violent and coercive, the father's act of kidnapping the child cannot be justified even though he has parental authority." If this can be used inside Japan, perhaps it can be used in conjunction with Article 226 for kidnappings outside Japan also.

To learn more about the status quo - not treating parental kidnapping as a crime and especially not international parental kidnapping, please see Parental Kidnapping is not considered a crime in Japan, in particular when it is done by Japanese citizens.

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