The Curious Case of the Criminal Tattooist

THOR, Tattooing, CC BY 2.0

Last week, Taiki Masuda was fined ¥150,000 by the Osaka District Court, for the crime of conducting “medical practices” without a medical licence. This was the first time a Japanese court has directly ruled on the legality of tattooing—that is, tattooing performed by anyone other than a licensed medical practitioner.

The saga began in 2015, when the Osaka police launched an unprecedented mass assault on the tattoo industry. While official harassment of tattoo artists is hardly novel, previous operations had focused on practitioners integrated into Japanese organized crime, rather than independent commercial artists. This time, the police arrested dozens of artists, with most sentenced to fines in summary proceedings. Masuda was one of these, ordered to pay a fine of ¥300,000.

However, Masuda chose to contest his guilt and have it decided at a full criminal trial in the District Court, hoping to vindicate the lawfulness of tattooing and thus protect the industry from further interference. The prosecutions were brought under section 17 of the Medical Practitioners’ Act 1948, which forbids anyone other than a licensed medical practitioner from conducting “medical practices.” Unhelpfully, section 17 does not define the practices to which it applies. The authorities argued that it included tattooing, while Masuda maintained that tattooing was not medical in its nature but artistic, and therefore outside the meaning of the statute. The Court convicted Masuda, upholding the authorities’ interpretation of the 1948 legislation.

The decision was hardly surprising, since the rate of conviction at trial in Japan is almost 100 percent. The usual explanation for this is that Japan’s under-resourced public prosecutors pursue to trial only cases in which guilt is patently clear, or – which is not quite the same thing – in which the prospects of conviction are particularly strong. However, Masuda’s conviction reveals the dangers of Japan’s near-guarantee of a guilty verdict at trial; though the explanation for this phenomenon seems innocuous, there remains a risk that courts treat the fact that a prosecutor has chosen to indict a particular defendant as an indication of his guilt, and that trials become little more than judicial ratifications of the prosecutor’s decision to seek conviction.

Courts treat the fact that a prosecutor has chosen to indict a particular defendant as an indication of his guilt

That the prosecutors chose to indict Masuda despite the questionable statutory interpretation on which their case relied suggests prosecutors are aware of the influence their decision to indict a particular defendant has on the court called on to establish that defendant’s guilt. Sometimes – perhaps when pressured to make an example of a particular troublemaker, or establish a useful legal precedent – prosecutors may come to rely on customary judicial deference to obscure the cracks that serious legal analysis would expose in their case. The prosecution’s argument in Masuda’s case contained many conspicuous flaws – flaws replicated in the judgment of the Court.

The prosecutors and the Court relied heavily on guidance issued by the Ministry of Health, Labor and Welfare in 2001. This purported to clarify the scope of the Medical Practitioners’ Act, and classified “inserting pigment into the skin using a needle” as a medical practice. That the Court placed such weight on this guidance shows the complex interaction between statute law and the vast numbers of administrative directives issued by the state bureaucracy. In an important 2014 decision, the Supreme Court itself stated that administrate notices do not affect the contents or meaning of formal law. In that case, Japan’s highest court ruled that a foreign resident in Japan could not seek judicial review of her local authority’s decision to deny her social welfare, because her eligibility for such payments was not legal – the relevant statute permits payments only to Japanese citizens – but merely administrative, deriving from a ministry directive that foreigners should be awarded welfare payments on an equal footing with Japanese nationals. The Osaka court’s ruling suggests that, while Japanese courts distinguish rigidly between law and mere administrative guidance in order to insulate the state from liability or review, they will happily blur the distinction when administrative guidance supports the authorities’ preferred interpretation of the law itself.

The Osaka court’s ruling suggests that courts will happily blur the distinction to support the authorities’ preferred interpretation of the law

As is customary, the Court rejected each of Masuda’s arguments based on the Constitution. He had submitted that tattooing was a form of expression protected under Article 21, but the Court, not wholly illogically, concluded that freedom of expression did not protect the act of tattooing others, even though being tattooed oneself might be considered an aspect of self-expression. Moreover the Court denied that requiring tattooists to hold a medical licence violated Article 22’s guarantee of the right to choose one’s profession, because that right must yield to public welfare considerations. Indeed, the Court thought medical qualifications “indispensable in order sufficiently to understand the dangers” inherent in tattooing.

It would be wrong to hold the individual judges particularly responsible for the decision’s flaws, since they acted entirely in-character as members of Japan’s somewhat idiosyncratic judicial branch. Indeed, the verdict was actually notably lenient; the Court fined Masuda ¥150,000, half the sum originally imposed during summary proceedings. The Court offered no explanation for this reduction, but the judgment did emphasize Masuda’s sterling efforts to ensure the hygiene of his premises and equipment, which might have moved the Court to soften his sentence. However, reducing liability for this reason exposes as absurd the Court’s prior insistence that only a medically qualified and licensed individual could possibly understand and counteract the risks of infection involved in tattooing.

Masuda’s lawyer, Takeshi Mikami, predicted that this trial would “decide whether the art of tattooing can continue in Japan”. This is hyperbolic. The outcome, frustrating though it is, does not on its own spell the immanent death of Japanese tattooing. For one thing, Japan lacks a formal doctrine of precedent, and even its unofficial equivalent attaches very little weight to the decision of a lowly District Court. Future courts remain in principle free to reach different – and legally sounder – conclusions on the same question.

But even if the illegality of tattooing were conclusively confirmed, that would not mean in practice that the industry would altogether disappear, nor even that police intervention would intensify. Even when activities are criminalized for being immoral or socially corrosive, the Japanese authorities typically do not attempt the difficult task of their outright elimination, but instead tolerate a self-regulated underground industry, provided its denizens respect the unspoken division between their world and that of Polite Society. Even if tattooing is illegal, what matters in practice is public officials’ willingness to tolerate its continuation.

Specific local causes lie behind the Osakan police crackdown. The city mayor at the time, Toru Hashimoto, became notorious during his tenure for his bizarre personal vendetta against inked skin. In 2012, he even tried to force the city’s more than 30,000 civil servants to declare their “tattoo status” as a matter of public record, suggesting that those with tattoos would be expected to resign. With the additional foreign scrutiny associated with the 2020 Olympics, officials will be slow to replicate Osaka’s harassment of the tattoo industry. Indeed, the authorities are already trying to avoid the embarrassing prospect of tattooed foreign spectators – not to mention Olympians themselves – suffering the widespread discrimination that excludes tattooed people in Japan from facilities such as hot springs, swimming pools and gyms.

Authorities planning the Tokyo 2020 games are trying to avoid the embarrassing prospect of tattooed foreign spectators – and Olympians themselves – suffering discrimination against tattooed people

Despite the Court’s dutifully reciting the authorities’ arguments in defence of the requirement, for the authorities to invoke a rule that tattoo artists be licensed medics, a rule so unrealistic as to be tantamount to the outright prohibition of tattooing, has nothing to do with public health. It is simply an attempt to suppress a practice that much of Japanese society considers an aspect of delinquency, or at least non-conformity—which, for Japan’s reactionary gerontocracy, means much the same thing. This view endures despite significant changes in who is actually getting tattooed, and why, in Japan today. The practice is in rapid decline among professional criminals, with tattoos instead becoming the preserve of countercultural, fashion-conscious young people.

But if the dominant opinion of tattooing is myopic and outdated, so too are foreign advocates of Japanese tattooing often equally selective in their accounts of Japanese tattoo culture. Appealing to the long history of Japanese tattooing and its intimate connection with iconic art forms such as woodblock printing, certain foreign voices condescendingly present Japan as having “lost its way” by forsaking this aspect of its artistic heritage. The reality is that tattoos have never been “respectable” in Japan, at least since the Edo period. Traditionally, tattooing has always been a grudgingly proletarian practice, flourishing among those with dangerous, arduous and generally unenviable livelihoods such as carpenters, firemen and palanquin-bearers. Polite society looked down on the tattooed, due both to Confucian ethics that saw body modification as an affront to the natural pattern, and simple snobbery.

The need for greater acceptance of tattoos in Japan therefore comes not from their intrinsic artistic merit, but out of the need to remedy a social wrong. The scorn and exclusion experienced by participants in Japan’s tattoo culture is intimately connected with class dynamics and prejudices, and must give way to recognition of the validity of subcultural identities and practices. Ensuring the lawfulness—and appropriate regulation—of tattooing is an integral part of that project.

The need for greater acceptance of tattoos in Japan comes not from their intrinsic artistic merit, but from the need to remedy a social wrong

Masuda intends to appeal. If he does, he is likely to lose. But even if he miraculously achieved that most elusive of prizes – a victory against the state in the Supreme Court – confirmation of the legality of professional tattooing is alone inadequate to change Japanese society’s treatment of tattoo culture. A more immediately transformative victory would be a successful private law challenge to one of the many acts of discrimination faced by those with tattoos. In such an action, for instance against a hot spring refusing entry to a tattooed customer, liability would depend on a judicial impression as to whether the refusal was consistent with accepted (and acceptable) social norms. In applying this largely discretionary test, a court would have to critically evaluate and balance social values, possibly including even Constitutional principles like freedom of expression—which even the Osaka District Court suggested would be relevant to the bearing of tattoos, even if not to tattooing other people. It is not altogether novel for the courts to examine Constitutional values in defining the duties individuals owe each other as a matter of private law, even if they are reticent to invoke its provisions against organs of state.

As the stalwart Masuda has emphasized in foreign and domestic media interviews, there is far more at stake in this litigation than just tattoos. The case is about the importance of individual liberty, and diversity of thought and behavior. Its repression of tattooing shows the Japanese state at its most puerile and illiberal, revealing its prejudice, paranoia, and hostility to those who do not conform to traditional expectations of how the Japanese should think and behave. It is unlikely that Masuda will achieve the result he seeks, but he will at least raise the domestic and international profile of this issue, and he deserves commendation and support.

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James is an associate professor at Sophia University Faculty of Law, where he teaches and writes on English and Japanese private law, as well as constitutional law and legal theory. He has previously taught at the University of Tokyo and Meiji University. Most of his free time is spent in pain after training in three martial arts

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