(前置き)
ここでは「冤罪」という言葉と「無罪」という言葉を特に区別して使っていません。
引用文献などで必ずしも区別していないと思われるものがありますので、「人違い無罪」という意味で理解してもらえればいいと思います。
一般に「痴漢」と言われてる場合には、罪名的には二つの場合があります。
1 「迷惑防止条例違反」(または単に「条例違反」)
これは、各都道府県の条例(リンク先は少し古いかも)で定められた罰則違反のことでする
罰則の例として東京都の「公衆に著しく迷惑をかける暴力的不良行為等の防止に関する条例」の第5条を見てみますと
何人も、人に対し、公共の場所又は公共の乗物において、人を著しくしゆう恥させ、又は人に不安を覚えさせるような卑わいな言動をしてはならない。
と規定されており、その罰則は、「六月以下の懲役又は五十万円以下の罰金」(常習者は「一年以下の懲役又は百万円以下の罰金」)です。
2 強制わいせつ
刑法第176条
十三歳以上の男女に対し、暴行又は脅迫を用いてわいせつな行為をした者は、六月以上十年以下の懲役に処する。十三歳未満の男女に対し、わいせつな行為をした者も、同様とする。
だいぶ法定刑の重さが違いますが、具体的にどう違うかについてごく大ざっぱに言いますと、着衣の上から触った程度だと条例違反、下着の中に手を入れて直接触った場合には強制わいせつ、ボーダーラインは例によって微妙、という感じです。
女性の意思に反して下着の中に手を入れる行為自体が「暴行」と評価されますので、殴ったりしなくても強制わいせつになります。
ちなみに、強姦罪の法定刑は「三年以上(二十年以下)の有期懲役」です。
(本論)
私が検事になった当時に、最初に疑問に思ったことの一つに強姦関係の性犯罪の量刑が低すぎるんじゃないか、というのがありました。
強盗などと比較してとても軽い印象を受けました。
しかし、だんだん重くなってきて、最近では、強姦罪の上限に近い判決や強盗強姦で無期懲役というのも珍しくなくなりました。
性犯罪に対する検察庁や裁判所の意識が女性の被害実態に近づいてきたということだと思います。
しかし、それと裏腹の関係にあるかのように、痴漢冤罪というものが目につくようになってきたように思われます。
手近な資料としてウィキペディアの痴漢冤罪の項を見てみますと、
なお、98年以降、痴漢事件に関して各地の下級審で30件以上の無罪判決が出ている
とあります。
これは決して少ない数字ではありません。
これの数倍または数十倍の文字通りの冤罪事件が存在している可能性があります。
東京新聞の記事をさらに引用させて貰います。
警察庁の統計によると、痴漢行為の多くが対象となる迷惑防止条例違反事件の検察への送致数は全国で、九〇年が千八十一件だったが、二〇〇〇年は四千九百七十四件に増加。〇五年には八千十八件にまで急増している。全国痴漢冤罪弁護団によると、九六年ごろまでは、科学鑑定や目撃情報などの裏付けのない痴漢事件を検察が起訴する例は少なく、無罪判決は一件も把握されていない。
ところが、警察からの送致件数が急増し始めた九七年ごろから、被害証言だけを証拠とした起訴が目立つようになり、九八年以降、痴漢事件で少なくとも三十件の無罪判決があったという。
1998年というと私が検事を辞めたころですので、無罪増加の理由を肌で感じていたわけではありませんが、辞めて弁護士になった後に接触のあった若手検事の言葉の端々には、被害者供述の偏重が感じられます。
「被害者と被疑者の話が一致しなければ、私は被害者の話を信用します。」ということを弁護士の私に平気で言う検事もいました。
たしかに一般論としては、被害者には嘘をつく理由がない、被疑者は責任逃れのために嘘をつく場合が多い、ということは言えるのかも知れませんが、そのような一般論と個々の事件において被害者の話と被疑者の話とどちらが信用できるのか(またはどちらも信用できないのではないか)という問題は全く別問題なのです。
供述(または証言)の信用性の判断のためには、意図的に嘘をついているかどうかだけが問題になるのではありません。
人間には、「勘違い」や「思い込み」という事実誤認機能が仕様として組み込まれています。
満員電車内の痴漢の場合には、スカートの上からお尻を触られたというようなパターンでは痴漢被害の事実すら勘違いであることがあります。
下着の中に手を入れられたというパターンでは被害の事実についての勘違いはほとんどないと思いますが、その手が誰の手なのか(犯人性の問題)については、多分に勘違いや思い込みが紛れ込んでくる可能性があります。
東京新聞の記事には
痴漢はかつて軽微な犯罪とみなされ、女性が被害を訴えても、起訴されるのは悪質で証拠が確実な事件に限られる傾向があった。
という部分があります。
「痴漢はかつて軽微な犯罪とみなされ、」というのは、強姦事件の量刑が軽かったこととも対応しています。
「軽微な犯罪とみなされ」というのは、検察が「世間は痴漢を軽微な犯罪と考えている。」と認識していたことを意味しますから、検察は、証拠が不確実な事件(被害者と被疑者の供述が水掛け論になる場合がその典型)は不起訴にしても世間の反発は招かないと考えて不起訴にしていたと言うことができるかと思いますが、水掛け論の事件は「疑わしきは被疑者の利益に」の原則に則った事件処理の基本ですから、検察の姿勢としては全く間違っていなかったと思います。
ところが、
しかし、女性が泣き寝入りする原因になっているとの反省などから、近年は被害証言が具体的で信用できれば、客観証拠がなくても起訴されるケースが増加(東京新聞)
してきたわけです。
起訴時の判断を厳格にすれば(つまり、不起訴の場合が多くなれば)、結果として「女性が泣き寝入りする」ことになるのはそのとおりです。
しかし、問題は、被害女性が犯人だと名指しした人物が本当に痴漢の真犯人なのかどうかなのです。
「近年は被害証言が具体的で信用できれば、」と言っても、具体的だから信用できるのか、という問題があります。
満員電車の中の事件では、ある女性に対して痴漢行為が可能な乗客は何人もいます。
その中から一人の人物を特定した被害者の供述の信用性をどれだけ慎重に吟味してきたのかが問われています。
問われているのは、起訴した検事だけでなく有罪判決を言い渡した裁判官もです。
いわゆる冤罪事件は、被疑者に虚偽の自白を強要して生じる場合が典型です。
しかし、痴漢冤罪の場合は、被害者の供述を盲信して、被疑者の弁解を全く聞かないことによって生じます。
痴漢事件のほとんどは現行犯逮捕事案です。
現行犯逮捕というのは、犯人性(その人物が真犯人であること)について疑いを入れる余地がないほど明確なので、令状を必要とせずに逮捕することが許容されている場合なのです。
しかし、痴漢事件の無罪判決においては、現行犯逮捕事案であるにもかかわらず、犯人性が否定されて無罪になる場合がとても多いのです。
これは異常と言うべき事態です。
被害者の最初の「この人、痴漢です。」の一言で、その後の全てが決せられてしまうような捜査が横行しているのではないかと危惧されます。
それに加えて、痴漢狂言の事件が発覚したのでは、被害者の供述の信用性に対する再検討の動きが出るのは不可避であり、最高裁としてもさすがに一言釘を刺さざるを得なくなったのではないかと思われます。
それが、先日の異例とも言うべき最高裁の無罪自判判決です。
ただし、ここで誤解のないようにしていただきたいのは、私が慎重に検討すべきだと言っているのは、被害者の供述の信用性であって、被害者の人格的信用性の問題ではないということです。
言い換えますと、既に書きましたが、被害の存在はあるとしても、犯人は誰かの観点では慎重な捜査が必要だということです。
被害者の供述が狂言であったとしても、被疑者の犯人性に関する慎重さ捜査を行えば、自ずと狂言であることも明らかになってくると思います。
しかしながら、被害者の犯人性に関する供述の信用性を慎重に吟味すれば、その結果として、被害者供述の信用性が、裁判で被告人の犯人性を証明できるほどのものとは認められない場合が多くなります。
繰り返しますが、この結果は、被害者が嘘つきである、と同義ではありません。
誤解、勘違いの可能性があると指摘されているだけです。
被害者供述の慎重吟味は起訴のハードルを上げますから、被疑者が真犯人である場合も不起訴になる可能性が高くなります。
結果として、高を括る不届き者が増えて、痴漢被害が増加することも懸念されます。
しかし、痴漢被害を防止する、ということと、痴漢犯人を処罰するということは、密接に関連しますが、裏表の関係にあるのではありません。
痴漢犯人と疑われる被疑者を犯人として処罰しようとするときは、「疑わしきは被告人の利益に」という大原則(利益原則)が妥当しなければなりません。
ここを動かしては刑事司法の自殺です。
そして、これも前述のように、利益原則は捜査段階でも妥当します。
強制捜査は必要かつ最小限度のある必要があります。
強制捜査の最たるものは、被疑者の身柄拘束すなわち逮捕・勾留です。
ところが、痴漢事件の現行犯逮捕が必ずしも当てにならないことは既に述べました。
ところで、このエントリの前編にあたる「最高裁で痴漢裁判逆転無罪」のコメント欄の
なお私は、かなり本気で、気の毒な冤罪被害者を出さないために、世の女性には痴漢くらい大目に見て欲しいと思ってます。*勿論少数意見であろうことは自覚してます。
というコメントが注目されているようです。
少数意見というだけでなく、暴論と言ってもいいと思います。
痴漢は、するほうが悪いにきまってますから(ただし、この意見にも異論はありうる。)。
で、暴論だ、と言うのは簡単なんですけど、この一文に含まれているバランス論を考えはじめますとなかなかむずかしいです。
ひとつの見方として、白片吟K氏さんのコメントがけっこう鋭い。
ついでに誤解を恐れず、白片吟K氏さんのコメントを引用して付言します。
痴漢冤罪の実質的な核は 痴漢冤罪の苦しみ(男性)vs痴漢被害の苦しみ(女性)、だと思う。
という対立構造が存在するのですが、現状の捜査状況、つまり
被害者の被害申告(犯人特定) → 被害者供述を信用して被疑者逮捕・勾留 → 勾留のまま起訴 → 被疑者(被告人)の生活崩壊
という実情を考えると、痴漢冤罪の苦しみ(男性)vs痴漢被害の苦しみ(女性) のバランスが(一般論的には)取れていないように思えます。
これは、被害者の責任ではなく、捜査側の問題です。
身元がはっきりしている被疑者(被害者から犯人と名指しされた人)であれば、(指からの微物の採取などを行った後)逮捕せずに在宅捜査で双方の言い分をしっかり聞くとかすることは十分可能です。
微物から動かぬ証拠が見つかれば、それから逮捕したって遅くはないです。
このような被疑者と捜査側の緊張関係を踏まえつつ、痴漢の防止と痴漢の真犯人を確実に捕捉して起訴する方策を考える必要があると思いますが、長くなりましたので、ここで一区切りです。
補足説明
はてなブックマークコメントに以下のようなコメントついて注目されているようです。
『痴漢冤罪の苦しみ(男性)vs痴漢被害の苦しみ(女性) のバランス』<−それは対立させてバランスを取るものじゃないのでは?
まず前提として確認しておかなければならないことは、司法制度は神ならぬ(常に間違いを犯す可能性のある)人間が運営していますから、 「被害者保護 ≒ 犯人検挙」 という目的を達成するためには、 「冤罪発生が不可避」だと言うことです。
以上を前提にすると、制度運営上の問題として、痴漢冤罪と痴漢被害との間に以下のような関係が成立します。
痴漢冤罪増加 → 痴漢冤罪防止対策 → 起訴基準の厳格化 → 起訴されない痴漢真犯人増加 → 高をくくって行為に及ぶ痴漢犯人増加 → 痴漢被害者増加 ≒ 泣き寝入り痴漢被害者増加
『痴漢冤罪の苦しみ(男性)vs痴漢被害の苦しみ(女性) のバランス』というのは、このような関係を前提にして、被害者保護の最大化と冤罪被害の最小化をバランスさせることにほかなりません。(ブコメ見て誤記訂正 「このよな」→「このような」)
私のコメントに触れていただきまして
ありがとうございますm(_ _)m
在宅捜査になれば被疑者はかなり助かりますね。
逮捕されると、勤め先にばれて、リストラの口実にされる場合がありますから。
当該エントリーへのコメントは自粛するつもりだったのですが。
私の暴論を、このような深みのあるエントリーに昇華して頂けて感動しております。そうか、オレはこういう事を言いたかったんだなあ…。<妙な言い方ですがかなり本気です。
自分の考えをまとめるのに、とても読みやすいエントリーですね。
このエントリーを読んで思ったのが、公共交通機関の乗車制限やホームなどへの入場制限が必要ではないかということです。
暴論に聞こえるかもしれませんが、今回の痴漢に関しても被害者の精神的・身体的な被害や痴漢冤罪の場合の被告の社会的影響、これ以外にも鉄道事故が起こった際の被害規模などを考えると、現状がかなり異常だと思います。
上記の乗車制限や入場制限を行うことで、かなりの社会的・金銭的コストが掛かることは予想できますが、それらは必要なコストだと思います。
願わくば、上記ような制限で日本の一極集中が緩和され、痴漢のような概念自体が消滅すればと思います。
一般に痴漢冤罪と呼ばれる中には、痴漢でっち上げ事件も含まれていますね。以下の視点を無視して、痴漢問題が考えられています。
痴漢でっち上げと痴漢冤罪の違い
http://www.shisokan.jp/hansei-joseigaku/chikan/
痴漢が仮に世の中から1人もいなくなっても、痴漢でっち上げ事件は起こります。痴漢問題を真剣に考えるなら痴漢でっち上げ事件のことも考えないといけないですが、痴漢冤罪と痴漢でっち上げ事件の区別をうやむやにした議論ばかりが横行していますね。
補足説明を追記しました。
あなたのブログを拝見しました。
>痴漢冤罪と一般的に呼ばれる中に痴漢でっち上げ事件も含まれているという視点が、ありませんでした。
とのことですが、
>>被害者の供述が狂言であったとしても、被疑者の犯人性に関する慎重さ捜査を行えば、自ずと狂言であることも明らかになってくると思います。
は、痴漢でっち上げ事件を想定したものです。
正面から痴漢でっち上げ事件を取り上げていないのは、このエントリの趣旨から外れる部分が多いからです。
なお、あなたのブログに
>痴漢冤罪の苦しみと記事にはありますが、その苦しみの最たるものは痴漢でっち上げ事件です。
という記述がありますが、冤罪被害者から見れば、人違い冤罪もでっち上げ冤罪も、身に覚えのない痴漢の容疑をかけられるという意味で全く同じです。
No.3 タケノコさま
痴漢が満員電車のみで発生しているかといえばそうではなくて
空いた電車でも、映画館でも、夜道でも、本屋でも起き得ます。
残念ながら電車の混雑緩和だけで痴漢という概念を消滅させるのは難しそうです。
No.6 モトケンさま
でっちあげだということが当事者同士にだけはわかっている場合(車内マナーを注意したことへの逆恨みによる虚偽告発など)においては、他ケースに比べて怒りの要素も大きく、
>冤罪被害者から見れば、人違い冤罪もでっち上げ冤罪も、身に覚えのない痴漢の容疑をかけられるという意味で全く同じ
とは言えない場合もあるかもしれません。
追記:
shisokanさまがご自身のblogで例として挙げられているような
でっちあげだということがわからないままに訴えられたような場合は、
その事実がわかるまでは、
モトケンさまの仰るとおり、苦しみは全く同じと考えます。
モトケンさん、お返事をありがとうございます。
>痴漢でっち上げ事件を想定したものです
想定していたのに、「視点がなかった」と言ってすいませんでした。ブログ記事のほうは訂正しておきます。
言いたいことは、ブログのほうではなく、以下のサイトのほうにまとめています。
http://www.shisokan.jp/hansei-joseigaku/chikan/
>正面から痴漢でっち上げ事件を取り上げていないのは、このエントリの趣旨から外れる部分が多いからです。
「このエントリで正面から痴漢でっち上げ事件のことを取り上げるべき」と言っているのでは全くなく、「痴漢冤罪のことを考える際は、痴漢でっち上げ事件のことも考えるべき」と言いたかっただけのことです。
エントリの趣旨が痴漢でっち上げ事件そのものである時にも、以下のような変なことを言われますね。
痴漢でっち上げ事件を正面から取り上げると、「それは極一部のことで、痴漢をする男を正当化するつもりか」とか言って痴漢でっち上げ事件そのものの問題化を阻む人たちや(暗数を考えないのか、この人たちは)、あるいは「痴漢でっち上げ事件を考えると、痴漢痴漢と騒ぐ女たちが悪い」とか言って痴漢そのものの問題化を阻む人たちなどの両方面から極論が出てきます。この両方面の人たちは反対の位置に属しているようで、痴漢のことをいい加減に考えているという点で、実は似たもの同士ですね。
モトケンさんが痴漢でっち上げ事件を正面から取り上げることになる際には、そんな極論も出てくるかもしれませんね。
痴漢でっち上げと痴漢冤罪の違いが苦しみの度合いという感情の問題であるなら、その点を重視する方がご自分のBlog等で取り上げられるのが適当でしょうね。このエントリのテーマとは違う切り口でありますから。
~~~ 少し脱線 ~~~
そういえば昔、おニャン子クラブがとんでもない歌詞の歌を歌ってたよなぁ、と思ってググってみると出てきました。
「おっとCHIKAN!」という曲が。
1番の歌詞しか憶えていなかったのですが、いちおう2番で多少フォローされてたんですね。2番までフルコーラスで聞かないと、単なる痴漢でっち上げの歌なのですが。
とはいえ、2番の後にサビの繰り返しが入っちゃったら、やっぱりダメだろう!と思いますが…
(歌詞については各自題名でググってみてください)
No.9とコメントが行き違いになってしまい、No.10に言わずもがなのことを書いてしまったようです。失礼いたしました。
多くの痴漢犯罪で証拠が残るのならば、捜査をしっかりすれば冤罪は防げると思います。しかし、痴漢犯罪というのは、被害者の証言が唯一の証拠と言うことも多いのではないでしょうか。
その場合、双方の言い分をしっかり聞く事が必要になりますが、容疑者の主張も正当な場合、被害者の主張も正当な場合、双方あると思います。
容疑者の主張が正当であり、被害者の主張が正当な場合、どちらの主張を受け入れるべきなのか、が最高裁の議論の焦点であり、痴漢犯罪の難しいところなのかも知れません。
痴漢冤罪が被告人に与える不利益と、痴漢被害者が被害を泣き寝入りする不利益を勘案する場合、やはり痴漢冤罪が与える不利益の方が大きいわけだから、痴漢被害者には泣き寝入りして貰うというのが、今回の最高裁の判決だと思います。その意味で、私には今回の判決は納得しがたい面もあるのですね。
痴漢冤罪という場合、大体、
冤罪という点に注目されます。
で、冤罪の防止と言うことが論点になります。
痴漢でっち上げというのは、犯罪です。
だから、犯罪としての対策がとられます。
痴漢ではない人が痴漢呼ばわりされるという点では同じですが、
論点が違うんですよ。
でっち上げ痴漢については、警察のフィールドですし、
それなりにいろんな対策がとられているということは、
人づてに聞いているのですが、
そーゆー捜査とか防犯に関する情報をネットでぺらぺらしゃべるのは
でっち上げ痴漢の人も読むかもしれないからやめとこうと思ってます。
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