A Turbid River of History and Law: The Procurement of Women in Imperial Japan and Colonial Korea

Abstract

Japanese military brothels during the Pacific War, known as comfort stations, and the predicaments of women confined there still reverberate in public memory. Of late a growing number of scholars have called for approaching the comfort women issue from a broader historical context, linking it to Japan’s prewar state-regulated prostitution, later transplanted into its colonies, and human trafficking. This article discusses the legal frameworks of indentured contracts and criminal prosecution surrounding the procurement of women in imperial Japan and colonial Korea. Most women entered prostitution impressed by poverty when the law fully recognized their agency as independent contractors. The age-old machinery of advanced loan agreements, signed or guaranteed in many cases by destitute parents, revealed how the ill-guided idea of filial piety muddled the boundaries between the exercise of legal rights and their abuses. The judicial process dealing with prostitution contracts and also the crimes of abduction and kidnapping helps understand how law and state institutions operated in the Japanese colonial empire. The recent historiographical debate on the comfort women raises critical questions about the conditions under which the past is assessed.

The recent debate among scholars on the wartime history of imperial Japan has brought to the fore questions about the conditions under which the past is assessed. Japanese military brothels during the Pacific War, known as comfort stations, and the predicaments of women confined there reverberate in public memory over three-quarters of a century after the end of the war. The subject touches on some of the most critical issues in modern times, such as human rights, gender bias, wartime violence, and state responsibility, and also epistemological problems concerning historical evidence and interpretation.

The ‘comfort women’ matter gathered attention from the international community beginning the 1990s, as the women sought recourse by filing lawsuits against Japan. At the turn of the century, the focus was on the military’s atrocity, imperial aggression, and ethnic discrimination. But court battles waged in the United States and Japan to seek official vindication and compensation were largely unsuccessful in the face of proffered defense including sovereign immunity, statute of limitations, non-justiciable political questions, and treaty waivers.¹ Obstacles stacked against the plaintiffs in the courtroom were in part instrumental in prompting a new direction in how the subject of comfort women was addressed by the activists as well as scholars. Since then, a growing number of historians have shifted away from proving the military’s crimes to placing emphasis in broader historical contexts, focusing on prostitution as a form of exploitation of women and highlighting the structural problems of social and economic coercion. Linking comfort stations to Japan’s prewar prostitution is one such new approach.

The history of prostitution in Japan, dating to the Tokugawa era (1603–1868), is a well-researched subject. The establishment of public prostitution during the Meiji period (1868–1912) has of late received increased attention. Recent works have suggested that the organizing structure and operation methods of frontline brothels were in many ways an extension of the state-regulated system. These perspectives helped broaden the historical inquiry, urging researchers to explain the comfort women issue against the backdrop of the peacetime prostitution apparatus and human trade.² They have proved far more subtle and insightful than the earlier attempts concentrating on the theme of military sexual slavery.³ The paradox is that this new path pointed to potential discord between the feminist and the nationalist frameworks. A sizable number of comfort women were believed Koreans. Because Korea was under Japanese colonial rule, the overriding view among Koreans has been that most women had been conscripted and forcibly sent to the war zone brothels by their colonial overlords. One may fairly ask, then, whether this colonial domination thesis does not deflect attention from the viewpoint that gives prominence to the fundamental social ills and injustice of prostitution, and vice versa. Some early proponents of the ‘feminist turn’ were not oblivious to this dilemma and exhorted scholars to transcend the nation-state frame of reference.⁴ Approaching the comfort women from the angle of prewar prostitution, not just wartime occurrences, has also brought to the surface the difficult question of how to define the boundaries between coercion and choice in a society where commercial sex formed an officially sanctioned economic sector.

It is an understatement that the comfort women issue entails a highly controversial historiography. It has recently given rise to a contentious debate, most notably surrounding J Mark Ramseyer’s article published in early 2021.⁵ Ramseyer’s main argument is that women entered the military comfort stations through voluntary contractual agreement, akin to domestic prostitution arrangements. This evoked strong reactions from a broad spectrum of academics. Mainstream historians and experts of the subject faulted him for his sweeping claim that women bargained with the brothel owners on an equal footing. In a carefully considered critique, Onozawa Akane stated that Ramseyer ‘confus[ed] the prewar system of prostitution and the wartime system’ in Japan and that many women from Japan’s colonies and occupied areas ‘had nothing to do with prostitution and were recruited without contracts’.⁶ She further claimed that Ramseyer disregarded the fact that most prewar Japanese prostitutes had been sold by their parents and were far from able to exercise agency to negotiate a contract.⁷ It would indeed be an oversimplification to argue that comfort women were no different from licensed prostitutes in Japan or that they negotiated contracts fully in accordance with rational economic principles. At the same time, scholars including Onozawa showed through their own extensive findings that a category of women at the frontline brothels had previously been engaged in the sex industry, legal or illegal, and that financial arrangements mattered greatly for them. Ramseyer’s inquiry, postulating the commercial elements of prostitution and underlying economic interests of individuals, thus has had the effect of critically expanding the research horizons, interpretive divergences notwithstanding.

Cued by those scholarly debates, this article discusses the legal edifice surrounding the procurement of women in imperial Japan and colonial Korea. Students of legal history have reason for paying attention to the legal ramifications of public prostitution and the judicial process. The licensed prostitution system in Japan was a product of the organic growth of legislation and jurisprudence. The famous Dajōkan decree of 1872 proclaimed the emancipation of prostitutes.⁸ The government declared that the prostitution regime supervised by local administrations would eliminate human servitude and guarantee individuals’ freedom to work in return for payment. Under the Meiji Civil Code of 1896, women’s agency as independent contractors was fully recognized. Disputes over prostitution contracts continued throughout the prewar years, however, and concerns about human sales persisted because many women entered prostitution impressed by poverty.

The situation was similar to and yet different from that in colonial Korea. Korea was annexed to Japan in 1910 and remained its most important colonial territory. Korea was governed by Japanese law, both civil and criminal.⁹ Chosŏn Korea did not have the organized prostitution sector before the arrival of the Japanese in the peninsula in 1876. Under colonial rule, the state-regulated system was transplanted, alongside which many women worked underground as unlicensed prostitutes.¹⁰ Rampant trafficking of women and girls took place. The magnitude of the problems can be gauged from the fact that when Japan ratified the International Convention for the Suppression of the Traffic in Women and Children in 1925 it chose to exercise the right to exclude its colonies from the treaty coverage. It shows that the Japanese government was concerned that its limited administrative forces could not ensure the fulfillment of its treaty obligations in the overseas territories. Human trafficking increased dramatically after the Japanese invasion of Manchuria in 1931. Situations involving colonial Korea offer an important reference point in efforts to seek the nexus between civilian and military prostitution. Scholars have persuasively argued that the existing network of procurers, operating lawfully or unlawfully, facilitated the rapid mobilization of women for comfort stations.¹¹

It is necessary to state the scope of this article clearly at the outset. It does not discuss the operations of the comfort stations or the women’s plight there. Suffice to say no reasonable scholar would argue that the state or the military deserves exculpation simply because prostitution was legal. The present article instead deals with the evolving attitudes of law to prostitution and judicial constructions of indentured contracts. It contemplates the historical subject of licensed prostitution and explores its relationship with wartime brothels. Research on comfort women has demonstrated that in many cases women were recruited via various intermediary processes involving civilian brokers. It is far from clear how many of them fell victim to fraudulent recruiters, abusive parents, or outright kidnappers. What is clear is that there were many routes leading to the comfort stations and we do not need to preclude one or the other. Coercion can come in many different kinds, and ignoring its complexity runs the risk of obscuring our understanding of the comfort women history.

Some would argue that there is no extant evidence that women signed contracts to work as prostitutes for the military. Others would object to connecting the cases of human trafficking directly to the comfort women. Still others may protest that the official court records and contemporary news reports, on which this article mainly relies, are inadequate sources on the grounds that the judicial proceedings rarely allowed space for the voices of the women as victims and newspaper stories of abduction and kidnapping were often sensationalism. But these very legitimate concerns highlight and validate the need for scrutinizing law provisions, jurisprudence, and law enforcement, taking into full consideration underlying institutional assumptions, engagements, and limitations.

Section I analyzes legal disputes in Japan over geishōgi contracts.¹² The government-approved prostitution system (kōshō seido) in prewar Japan operated based on the age-old machinery of indentured contracts with upfront advances (zenshakukin or maegarikin). In many cases the parents took out loans from prostitution operators, placing their daughters as collateral; other times they served as guarantors to the loans made out to the women. Often the transaction took the form of an adoption contract. Section II discusses the situation in the Korean peninsula where the abduction of girls occurred at an alarming rate. Unlike in Japan, prostitution contracts rarely became the subject of legal contention and few cases came up for judicial deliberation, mainly because licensed prostitution was still on shaky ground. Far more urgent for colonial officials was to control referral agents, brokers, and operators who lured women from rural areas in horrid economic conditions and pushed them into the expanding sex markets. Here, one ought to approach with caution the question of the parents’ role in these circumstances. Most destitute parents did not send their daughters to prostitution, although some did. More commonly, girls took the job to help their family (or so they thought). After all, we may fall short of the empathy necessary to understand fully the level of desperation that consumed those families. Section III examines judicial cases in Japan and Korea concerning the crimes of abducting and kidnapping women to transfer them overseas.¹³

During the past several decades, an immense body of literature has been produced, and scholarship in the West has yet to take stock of the impressive research outcome available in non-western languages. Discussion of the ways in which the courts dealt with civil disputes and criminal prosecutions in the Japanese colonial territories can help in assessing how law and state institutions functioned in different parts of the far-flung empire. Through a rounded approach to law and history, one can hope for a better understanding of the historiographical debate on those pivotal times.

I. GEISHŌGI CONTRACT IN JAPAN

The 1872 laws in Meiji Japan officially liberated indentured women. The Dajōkan Decree No 295 prohibited human trafficking taking place under the name of apprenticeship, and declared that lawsuits about the loans extended in the indenture arrangement would not be accepted in court. A week later, the Ministry of Justice explicitly voided such claims of the brothel owners against prostitutes and geishas.¹⁴ A series of laws and ordinances followed to regulate the prostitution business.¹⁵ As long as the practices of obtaining upfront loans through prostitution contracts continued, nevertheless, no real change seemed to result. The loans were repaid through the accounting of the labor rendered by the women over an agreed period of time. The real effect of these laws was that they regularized the ancient practice of advance loans.

During the early Meiji years, the courts were frequently asked to intervene in disputes between prostitutes, their parents, and brothel owners. Main legal contentions revolved around how to construe the advance loan contract stipulating a promise to work as prostitute, a woman’s right to remove herself from the profession, and the operator’s right to demand the repayment of the advanced debts. Following the enactment of the Civil Code (Minpō), the courts engaged in new interpretations of contract law. Selected judicial rulings deserve attention.

1. Licensed prostitution and jurisprudence

In 1900, the Daishin’in, the highest court, rendered a landmark decision in a contract dispute between a prostitute and a brothel owner. The Court invalidated the provisions of the contract that denied the woman’s right to quit, but it sustained the contract denominated as a commercial loan instrument.¹⁶ According to the Daishin’in, there were two legs in the geishōgi contract, a labor agreement and a debt payment agreement. The part of the contract that restrained the woman’s freedom was illegal but the part that arranged for the repayment of consumer loans by means of a fixed-period prostitution agreement was legal. The prostitute and her guarantor, in most cases her parents, had legal obligations to repay the advance money, and working as a prostitute during the agreed term of the service was a lawful means to satisfy the debt, it held. In October the same year, the Ministry of Home Affairs recognized the right of the prostitute to free cessation (jiyū haigyō).¹⁷ Yet, many women found themselves unable to leave the trade as long as they were bound to indemnify the loans that had been made to themselves or their parents.

Early on, questions arose as to whether an agreement pledging a woman to the service of another to pay the loans amounted to selling and buying persons. Under Article 90 of the Meiji Code, a contract that was not in violation of the express provisions of the law could still be declared illegal and void if it had for its purpose a matter that was contrary to public order or good morals (kōjo ryōzoku).¹⁸ In 1902, however, the Daishin’in held: ‘As far as the profession of a licensed prostitute is publicly recognized, and when a licensed prostitute as the debtor agrees to allocate the profits realized by her profession to fulfill her obligations, there is nothing in it that is contrary either to public order or to good morals’.¹⁹ The Court reasoned that one should be allowed to repay the loan by whatever means of her own choice and that signing a contract for prostitution was merely one of the choices open to her.²⁰

In the Taishō years (1912–26), the Daishin’in tried to clarify and refine its earlier position. In 1915, it reaffirmed that it was lawful to use the earnings from prostitution business for debt payment, yet held that the particular contract brought before the bench was invalid because it was in essence ‘a contract for the purpose of restraining a person even though it stipulated a method of debt payment’.²¹ Three years later, the Court ruled that a contract would be invalid if the daughter had been forced into such contracts against her will; where she agreed to pay back what her parent owed through her labor, however, that contract was valid and she was liable for the debts.²²

Why this distinction? Why could the Court not void the entire contract? Several judicial considerations were at stake. If the contract remained valid and the prostitute quit before repaying the debts, the guarantor would be contractually liable for the debt. If the entire contract were invalidated, on the contrary, the operator, unable to sue the guarantor, would not recover the money. Theoretically the parents could walk away and send their daughters to another brothel, which would then simply have the effect of allowing them to acquire more advances and continue to benefit from mortgaging the labor of their children. Before that could happen, of course, most brothels would have stopped advancing money, and the entire industry would have needed to find a new way of structuring the labor contracts. In 1921, the Daishin’in heard a case involving a contract the father had signed committing a 12-year-old girl to 10 years of prostitution in return for 20 yen.²³ The Court reaffirmed that a contract was void if its debt payment methods allowed the lender to use physical restraint to compel the woman to continue prostitution. The brothel keeper could not enforce the termination penalty provision. The prostitute’s right to quit was thus upheld, but the operator was still able to pursue his claims for the advanced money. Through this legal construction, the Court denounced the immorality of indentured contract but at the same time tried to deter the opportunistic behavior of the parties who, having secured advance debts, would abdicate responsibility citing the contract’s immoral nature. If the contract were voided on the grounds that the woman had been forced into prostitution, it would become difficult to hold the parents accountable. In the opinion of the jurist Wagatsuma Sakae, this was an example of how the Court, in order to reach the desired result, circumvented the formal logic of conventional jurisprudence by the use of legal fiction.²⁴

A woman’s decision to enter prostitution was in many cases that of her parents. Prostitution required the minimum age of 18. Under the Meiji Civil Code, anyone under the age of 20 lacked legal capacity and could not perform juristic acts like signing a contract.²⁵ In those cases, the parent or legal representative exercised power on behalf of the minor child.²⁶ Parental power (shin ken) was part of the rights in respect to the persons of others (jinshin ken). In addition, the father could exercise his power as the head of the house (ie).²⁷ The father, the husband, or a male relative regularly served as the guarantor of the contract signed by an adult woman.²⁸ Suehiro Izutaro stated that the parent acting as the guarantor in prostitution contracts was ‘actually the seller. It is an obvious matter that needs little more explanation’.²⁹ Unwilling to go so far as to deny the parental power and prosecute the parents for selling their daughters, the Court faced a dilemma. In theory, the woman’s intent was the controlling factor, but how to substantiate it in separation from the parents’ will was a wholly different question.

2. Parents and daughters

To what extent was the parents’ action at least a contributing factor to their daughters entering prostitution? The idea of filial piety was surely at work, though it offers little concrete evidence. When we consider the cases of geisha adoption, it becomes a bit clearer, as it was the parents who signed the adoption contract to place their underage children in a geisha house, some of whom subsequently were hired as barmaids and ended up becoming shōgi.³⁰ It is well known that adoption was extremely common in prewar Japan, legally recognized ‘almost unlimitedly’.³¹ Many expedient adoptions took place during the Meiji and Taishō eras.³² Most common, and controversial, was adopting a girl for the purpose of committing her to a career of geisha (geigi yōshi).³³ During the Tokugawa period, the so-called lifelong adoption (isshō futsū yōshi) was widespread. Under the practice, a parent or an older brother gave up the child or sister for adoption, severed the blood relationship, and promised that no complaint would be lodged against the adoptive parent as to the child’s treatment.³⁴ The conventional view was that isshō futsū  yōshi permanently dissolved the relationship with real parents, but recent studies have shown that many parents continued contact with their daughters after adoption.³⁵ When the transaction involved money, which was not uncommon, it amounted to a sale of children through the pretense of adoption. Promises were often made in advance that the adoption ties would be dissolved after a certain period of time, that is, after the geisha fulfilled the agreed terms of work. Legal bans of such abuses could be easily evaded when adoption rules were so lax.³⁶ It is far from clear how often the girls adopted in this way became prostitutes, but brothel keepers reportedly hired those girls fully knowing that they had been sold by their parents.³⁷

Disputes frequently arose when the girls fled to the home of their blood parents and the adoptive parents demanded their return. In 1880, the Tokyo District Court voided an adoption of an eight-year-old girl, finding that it was a disguised sale of the child in violation of the 1872 ordinance.³⁸ The following year, another court declared that the adoption contract brought before it was nothing other than the result of an arbitrary act by the mother without the girl’s consent. The court ruled that the brothel owner had the right to demand his money back but could not compel the girl to work as a prostitute.³⁹ These and similar cases have led historians to conclude that Decree No 295 continued to have normative binding force.⁴⁰

The Civil Code required the ‘intent to adopt’ (engumi ishi) for a valid adoption to take place. The courts came to interpret the element of intent more strictly, construing it not just as an intent to submit the adoption application but as an intent to form a truthful relationship as a parent and a child.⁴¹ In 1922, the Daishin’in voided the geisha adoption contract on the grounds that the real intent to create an adoption relationship was absent.⁴² This decision was notable because it reviewed the geisha adoption contracts in terms of Article 851 of the Civil Code governing adoption, rather than Article 90. Some scholars viewed the Court’s apparent moving away from the consideration of public order and morality as a step backward in jurisprudence.⁴³

Overall, the courts’ reasoning appeared dictated by the concern that the women would have less liberty if such contracts were voided, as long as the evil custom of treating daughters as chattel continued. Equally serious was the fact, as alluded to above, that brothels were a vital source of credit for families who had no security other than a child’s future labor.⁴⁴ Contracts with upfront advances were an ultimate safety net for many, and the courts likely were mindful of this dismal state of affairs. Still, the Daishin’in could not avoid the criticism that its seemingly artificial and mechanical splitting of a contract and its preoccupation with the law of obligations (saiken) provided legal cover for human trafficking. Debts to be repaid by indentured women were not just the principal extended to parents or themselves, but also interests, taxes, clothing and food expenses, and even training fee (shikomiryō), added by the pimps during their indenture.⁴⁵ Surely not all women had viable prospects of quitting the profession despite that they were free to do so under the law.⁴⁶ What fraction of prostitutes were able to leave the brothel within the contractual period remains a hotly debated issue among scholars.

The question as to whether prostitution contracts were against public order and good morals continued. Doctrinal opinions normally separate between objective and subjective public order and morality: the former concerned maintaining social order and the latter protecting the socially and economically vulnerable.⁴⁷ The dominant jurisprudence at the time was that the parties were entirely and absolutely free to create an obligation of any nature or substance so long as it was not prejudicial to social order. It was ‘a sign of the times’ that the Meiji Codes were ‘strongly individualistic in certain respects’.⁴⁸ Adhering to the principle of the freedom of contract, the Court pored over the language of the contracts to find the controlling legal intent, but the real problem was not the provisions in the contract so much as the illegal purposes that lay behind them. Scholars called for approaching geishōgi contracts from the standpoint of penal law, but the courts were reluctant to scrutinize the abusive exercise of parental power and possibly illegal transactions resulting from it.⁴⁹ Kawashima Takeyoshi wrote in 1951 that he had not heard of any brothel keepers who were ever punished for unlawful capture and confinement of the women working for them.⁵⁰

Jurisprudence changed after the Second World War. In 1955, the Supreme Court of Japan ruled that the employment and the consumer loan agreements in a prostitution contract were inseparable.⁵¹ When prostitution was against public order and morals under Article 90, a claim for the refund of the amount already delivered under the name of a consumer loan could not be allowed. Were advanced loans in prostitution contracts equivalent to unjust enrichment in terms of Article 708 of the Civil Code?⁵² A person who committed an act lacking social appropriateness cannot claim the recapture of his or her interest by claiming that the act he or she had committed was void. In the case of prostitution contracts, illegality did not reside solely on the side of the beneficiary (the parent or the woman).⁵³ In sum, the abrogation of the prostitution contract must necessarily lead to the invalidation of the entire contract, held the Court. The following year, the legislature promulgated the Prostitution Prevention Law.⁵⁴

Before its demise, the public prostitution system had spread to other parts of the empire including colonial Korea. In 1911, shortly after annexation, the Chōsen Kōtō Hōin, the highest colonial court, affirmed the Japanese jurisprudence of validating prostitution contracts.⁵⁵ This appears the only extant opinion rendered by the colonial high court directly dealing with prostitution contracts. The regulatory schemes of maintaining police order posed more urgent concerns in the Korean peninsula than contractual complexities and subtleties.

II. THE COLONIAL VARIANT IN KOREA

Following annexation, a growing number of Japanese civilians came to settle in the Korean peninsula. Prostitution businesses flourished, hiring Japanese as well as Korean workers.⁵⁶ In Chosŏn, trafficking children and women of ordinary families had been rare, with human trade limited to the sale of slaves.⁵⁷ As commercial sex now became openly available, human trafficking rings cropped up.

1. Introduction of the public prostitution system

The public prostitution system was brought to Korea in 1916 through the issuance of the Brothel and Prostitute Control Regulations.⁵⁸ Under the licensing regime, the minimum age for entering the trade was set at 17, instead of 18 as in Japan. This age limit applied to both Japanese and Korean prostitutes living in Korea. Brothel owners relied on recruitment agents working on commissions for all necessary procedures for hiring women, and how to control their conducts became an urgent task for law enforcement. In 1922, the colonial government issued the Referral Business Control Regulations.⁵⁹ They were modelled after the law of the same name issued in Japan five years earlier, but there were certain differences. In Japan, only an agent who ‘owns real estate valued at 300 yen or more’ could be licensed, and those who engaged in referral and arrangement for prostitutes were not allowed to provide service in other employment areas. There were no similar requirements in Korea.⁶⁰ Personnel referral service was one of the few business areas open to people with no sufficient capital or other prospects.⁶¹ The authorities likely decided that it was better to keep under regulatory power as many brokers as possible, rather than letting them go underground. In Japan, ‘introducing, arranging, or enlisting the client against the will of the client’ was prohibited; it was in line with the court decisions that the intent of the person was the main criterion in judging whether the woman had been coerced into prostitution. By contrast, the Korean regulations only banned ‘excessively aggressive methods of referral’. Under such a vague language, the application submitted by the recruiter on behalf of the prospective prostitute was approved without further verification of the woman’s will.

Referral brokers, now lawfully licensed, approached families in rural villages and offered lump-sum money to parents. For a woman to enter prostitution, she needed to obtain and submit to the local police chief the consent of her household head. An application had to be accompanied by a copy of the woman’s family register (koseki), along with the prostitution contract, in which the lender stipulated the total amount of loans and the agreed period of work to repay them.⁶² These requirements were in theory measures to protect women from trafficking, but they allowed fathers to conclude agreements on behalf of their daughters.

The neo-Confucian patriarchal authority, deeply embedded in Korean society, meant a strong parental control over children. The Chosŏn Ordinance on Civil Matters (Chōsen Minjirei) of 1912 declared Japanese laws to be the general laws in Korea, but decreed that most private law matters among Koreans were to be governed by the Chosŏn dynasty’s laws and customs.⁶³ Article 11 stipulated that capacity, family, and succession follow Korean custom. The revision of the Ordinance on Civil Matters in November 1921 placed parental power, guardianship, assistantship, and clan association under the Meiji Civil Code. Still, colonial officials continued to construe the traditional rights of the household head and parental authority broadly.

According to the conventional view, the system of house (ie) in the Meiji Civil Code was completely and thoroughly transplanted into colonial Korea. It has recently been argued, however, that under Korean custom the head of the household (hoju) continued to exercise far greater control over the status and legal capacity of family members than the Japanese did.⁶⁴ Under Japanese law, the head of a house had an exclusive authority over the constitution of the ie; he could, for example, expel a family member from the house. Compared with the power of the Korean household head, nevertheless, it was a symbolic prerogative, with few serious consequences in law. In Korea, the power of the household head was primarily based on the seniority in the blood relationship within the family, and, in this sense, the household headship came with relative, not absolute, authority. Yet, the consent of the hoju was viewed as an essential requirement for legal acts concerning the status of the family members, for example, marriage or adoption. Whereas the Meiji Civil Code sought to reconcile between individual freedom and the formal authority of the head of a house, Korean custom, recognized as law, allowed the patriarch to maintain extensive power over the family members in various matters.

In Japan as well as in Korea, there were reports that destitute families sold daughters after bad harvests. During the Shōwa Depression, from 1930 to 1931, illegal prostitution and trafficking spiked. Newspapers ran many stories of pure misery. One article featured the parents in Aomori in the Tōhoku region, who bought a house with the money they borrowed by sending their 14-year-old daughter to a brothel. The girl was sent away for 450 yen under a five-year contract, but the family actually received only 150 yen, after various fees and expenses deducted. They used 70 yen to pay up the old debts and 40 yen for the house; the remaining 40 yen simply dissipated.⁶⁵ Korean newspapers had similar bleak stories. In 1935, a girl, aged 16, was sent by her mother to a bar for nine years in exchange for 25 wŏn.⁶⁶ Upon finding that she was being loaned around to various brothels, her uncle asked for her return, but the bar owner demanded 200 wŏn that he had allegedly spent on her. The Chongno Police Station in Seoul, ‘astonished by the agreement so beyond common sense’, began an investigation.

2. The foster daughter fad

Some impoverished parents turned over their underage daughters as suyangnyŏ, meaning foster daughter, to be ‘adopted’ by a kisaeng, the Korean equivalent to geisha, or a brothel operator.⁶⁷ The practice could be traced to the Chosŏn times when the parents gave away young daughters, unable to feed them during famine and crop failures.⁶⁸ The colonial authorities were concerned early on about the suyangnyŏ practice. In the survey report of Korean customs, first published in 1910, the compilers stated that there was a custom among the Korean people to take in and raise someone else’s female child, but added that ‘it is a custom that should be highly abhorred because such a practice can be abused for profit’.⁶⁹ Foster child transactions in Korea were completely outside the purview of law, unlike adoption in Japan carried out through enforceable contracts regulated by law.⁷⁰ But now they came to put on a quasi-contractual form, taking place in exchange for money. The sudden rise in suyangnyŏ arrangements under colonial rule had to do, in part, with the spread of the knowledge of the Japanese geisha adoption. As in Japan, the foster parent would raise the child and, when she reached a certain age, train her to become a kisaeng so she could make money and pay back the amount that had been tendered to the parents. The agreement usually involved a period of nine years as in Japan.⁷¹ The courts in Japan struggled to detect indentured prostitution contracts disguised as adoption contracts; the colonial authorities feared greater troubles. It is likely that the popularized notion of the Japanese adoption model cast some sort of false legal ambience on the Korean practice. Crudely mimicking geisha adoption contracts, however, the foster daughter arrangements had no legal effect whatsoever. Under a cloak of adoption contract, the poorest parents were goaded into handing over their daughters, many of whom ended up in prostitution.

From the mid-1920s through the early 1940s, newspapers abounded with heart-wrenching tales of suyangnyŏ.⁷²  Tong-A Ilbo lamented in 1934: ‘We live in a society in which people sell their young daughters and shamelessly call them foster daughters. It is rare in the world to see women being openly sold and bought; it is rarer, still, to find a place where the laws allow the sale of women.’⁷³ It was an indictment of legalized prostitution, which many contemporaries blamed for causing the rise of the blatant sex industry and trafficking after the system was hastily imposed with limited local administrative power. It was also a criticism against the passive attitude of the colonial government which continued to refuse to intervene in commercial transactions of daughters. The colonial authorities largely restrained from meddling with the parental dealings with their children, not unlike in Japan. In Korea, in particular, Japanese officials tended to turn a blind eye to the suyangnyŏ practices, treating them as Korea’s custom residing outside the scope of the Japanese law codes. Colonial customs had better be left alone unless they were patently ‘repugnant’, so went the argument, and in this way the authorities remained apathetic to the plight of colonial women.⁷⁴

It was not until 1938 that the police launched an operation to ‘liberate’ foster daughters.⁷⁵ The timing was not accidental. With the outbreak of the Sino-Japanese War, Japan entered an all-out war system. In January 1940 the Work Referral and Placement Regulations were issued in the colony on the model of the Japanese law enacted two years earlier.⁷⁶ The Japanese law did not cover the management of prostitutes and barmaids, but the colonial ordinance focused on reducing the number of women in sex industries in order to preserve female wartime work forces. Cracking down on suyangnyŏ was also a preparation for the revision of the Ordinance on Civil Matters. In November 1939, adoption between persons of different surnames became legal in Korea.⁷⁷ A radical change from Korean tradition, the measure required massive campaigns to educate colonial subjects, and the authorities needed to let the public know that the existing foster daughter arrangements had no legal effect whatsoever.

In the spring of 1939, the police conducted a sweep of restaurants and bars selling sex.⁷⁸ Most foster parents were pressured to release the girls in their custody, but some hid the girls or hurriedly sold them to others. Disputes followed. A parent, who had pledged his daughter for nine years in return for forty wŏn, filed a suit, arguing that the foster parent, a kisaeng, failed to fulfill the promise that she would teach the girl song and dance for a year and a half and instead forced her into prostitution.⁷⁹ In turn, some foster parents brought lawsuits to recoup the money that they had paid to the birth parents and also to demand the expenses incurred for raising the girls.⁸⁰ Overall, the authorities kept the stance that it would not intervene in fights over the advance money the girls’ parents owed foster parents. The police stated that the matters should be resolved by appealing to the ‘human conscience’ of the foster parents and the ‘moral conscience’ of the biological parents.⁸¹ Newspapers held out the optimistic belief that the police-led campaigns would finally banish ‘slavery habits’ from Korean society.⁸² It is conspicuous that the foster daughter practices were explicitly linked to the sore past of slavery in Chosŏn. But any prospect for meaningful change remained distant when legislative changes were not forthcoming and colonial courts remained less than keen on disrupting patriarchal practices. The lack of effective state oversight of the prostitution system meant scant protection for the victims.

3. Human smugglers at work

Colonial women became vulnerable to false pretenses and employment scams, but illegal activities perpetrated against them often went unreported and, when detected, simply overwhelmed the law enforcement. The chief of the Tongdaemun Police Station in Seoul confided to a newspaper in 1939: ‘recruitment agencies in Seoul operate in a manner completely different from those in Japan. I am astounded by the fact that they engage in trafficking in broad daylight.’⁸³ Strictly speaking, fraudulent or exploitative recruitment on the one hand and trafficking on the other must be distinguished, but in many cases both fell under the laws prohibiting abduction (ryakushu) or kidnapping (yūkai) for profit. The Japanese Criminal Code punished the crime of abduction or kidnapping under Article 225:

A person who abducts or kidnaps another for the purpose of profit, indecency, or marriage shall be punished by imprisonment with labor for not less than one year but not more than 10 years.

Abduction could take place by fraud or persuasion. Restraining someone constituted abduction when it was done with intent to prevent the liberation of the victim. Kidnapping meant forcible abduction.⁸⁴ Abduction or kidnapping to transport victims overseas was a separate crime under Article 226, carrying heavier penalties:

A person who abducts or kidnaps another for the purpose of transporting him or her outside the empire shall be punished by imprisonment with labor for a definite term of not less than two years. The same shall apply to a person who buys or sells an individual for the purpose of transferring him or her outside the empire, or to a person who transferred outside the empire the individual who has been abducted or kidnapped.

The Chosŏn high court defined the abduction or kidnapping charge as ‘removing a person from the original living environment and placing that person under the de facto control of the perpetrator or a third party’.⁸⁵ Such acts constituted a crime regardless of whether the capturing of the victim took place by force and violence.

Newspapers ran abduction stories as early as 1920.⁸⁶ Criminals supplied licensed brokers with women unlawfully seized. In 1924, Chosŏn Ilbo reported that a group of agents in Pyŏngyang sold 1000 women a year.⁸⁷ Traffickers seldom operated alone. There were sophisticated organized networks, including forgery specialists to prepare the required documents. Stealing the family registers of dead people was common. Corrupt local clerks were not hard to find. An article detailed how the criminal registered a child as the bastard of a fake person, married her off to another fake person, feigned the death of her husband, and then sold her off.⁸⁸ A male and female team abducted and sold some dozen women, having pretended that each victim was the man’s sister-in-law.⁸⁹ One reason for the absence of effective police action had to do with the existing law. The police regularly made arrests. When it was shown that the victim was bound by a debt that had been legally created under a prostitution contract, however, the police said it had no authority to charge the suspects with crimes; such was the controlling jurisprudence. One sees that the crime of abduction by enticement metamorphosed into a civil law debtor–creditor relationship under the public prostitution system.

The 1930s saw a sharp growth in the number of Korean women working in restaurants and bars. The situation was exacerbated with the opening of new markets outside of Korea. The common overseas destinations for the trafficked women were China, Japan, Taiwan, and Sakhalin. Private brothels operated by Koreans mushroomed in China and Manchuria. In 1933, the Korean author Yi Kwang-Su (1892–1950) testified after he returned from a trip to Manchuria:

Most people’s livelihood in the urban areas depends on human meat market and smuggling and I heard many inn businesses sprang up recently. I was really surprised to witness the human meat markets run by the Korean people. There are Korean restaurateurs in Fengtian, Jilin, Harbin, Xinjing, and so on…. Korean women were sought after, and some they said dealt with 35 men a day.⁹⁰

In 1935, Tong-A Ilbo reported that there were 2000 Chosŏn women in the underground sex industry in Shanghai. These ‘traveling women’ seriously damaged the reputation of the Korean people, the article deplored, but since this was a result of ‘voluntary labor’, caused by economic hardship, there was no fundamental solution.⁹¹ According to the Government General’s Annual Statistics Report, in 1935 a total of 2450 Koreans, 24 Japanese, and 8 Chinese were arrested for predatory abduction (ryakushu) or kidnapping (yūkai); in 1938 the numbers were 1699 Koreans and 10 Japanese.⁹²

Fraudulent or exploitative recruitment by contractors surged as the war progressed.⁹³ The military comfort stations multiplied in the meantime. The concomitance of the proliferation of the smuggling of women and the operation of comfort stations seemed more than an accident. Whether, and to what extent, rampant abduction in Korea took place in collusion with the military and government officials to meet wartime needs is a fiercely debated topic. At least, it seems reasonable to conjecture that the military was disposed to tapping into the existing infrastructure of local entertainment businesses near the military posts to turn them into the comfort facilities.⁹⁴

In 1939, a crime ring was busted when it was about to ship some 50 Korean women to Manchuria. The perpetrators were discovered armed with the blank forms of the power of attorney, which would have allowed them to obtain whatever documents necessary for them to cross the borders.⁹⁵ In most cases, the police dropped investigation once it learned the victims had reached areas outside imperial jurisdiction.⁹⁶ The next section examines how the government authorities in Japan and Korea dealt with illegal procurement committed with the purpose of overseas transportation.

III. JUDICIAL CASES OF HUMAN TRAFFICKING

There are two judgments by the Daishin’in concerning the violation of Article 226 of the Criminal Code.⁹⁷ The Court affirmed the convictions of the traffickers in Shizuoka (1935) and in Nagasaki (1937). In the former case, the defendants conspired to bring the victims to Manchuria to work at a café near a military base frequented by imperial soldiers.⁹⁸ In the latter, 10 criminals plotted to deceive and abduct 15 women from 1930 and on with a view to transferring them to a Japanese naval comfort station in Shanghai.⁹⁹ The fact that some parents had signed their daughters into these schemes entailed certain confusion in charging the defendants with abduction or kidnapping, and the Daishin’in in the Shizuoka case set out to clear up the uncertainty. It rejected the defense argument that under Article 226 the prosecution must show that the victim had actually been deceived and duped.¹⁰⁰ According to the Court, whether the parent or legal guardian knowingly consented or consented as a result of fraud and deception was not material in abduction and kidnapping crimes. This meant that motive was unimportant as long as the act of abduction and kidnapping or conspiring to do so could be proved. In the Nagasaki case, the Court held that whether the victims were procured to serve soldiers at the military bases was irrelevant. It stated: ‘the question of whether the Imperial Navy was stationed in Shanghai or whether imperial sovereignty extended there has nothing to do with the establishment of the crimes’. The relationship between the military and the private recruitment agents was not germane to the case; the legislative intent of Article 226, written in 1907, had no bearing on the existence or operation of military brothels, no matter whether the women had been arranged to work in those facilities, held the Court.

These decisions did not go unheeded by the government authorities. Not long after the Nagasaki judgment, the Ministry of Home Affairs issued a directive, tightening regulations on the identification documents required of women traveling for the purpose of prostitution.¹⁰¹ The imperial army dispatched a classified bulletin, alerting military commanders to illegal recruiting practices.¹⁰² Neither the Shizuoka nor the Nagasaki judgments touched on whether the military was involved in the criminal plots. There is no information on whether the police and prosecutors conducted investigation of the perpetrators’ potential association with public officials. From this, some historians suspected that the Ministry of Home Affairs, the police, and the military were in complicity in concealing the state’s involvement in wartime prostitution and the Court went along with it.¹⁰³ In any case, it seems clear that officials were worried that women were being recruited in an illegal manner by unsavory brokers and that Japan might be violating international anti-trafficking treaties it had signed.

There is one extant decision rendered by the Chōsen Kōtō Hōin on Article 226. The case in 1935 dealt with procedural issues, that is, whether the abduction incident in which the victim had been sent to Kantō shū fell under Article 225 or Article 226 of the Criminal Code.¹⁰⁴ Kantō shū, or Kwantung, in the Liaodong Peninsula was a leased territory of Japan from 1905. The Court explained that the crimes punishable under Article 226 carried heavier punishment than the ordinary offense of abduction and kidnapping, because victims transported outside of imperial jurisdiction were deprived of legal protection under Japanese law and were subject to potentially greater harms. ‘Currently the leased territory of Kantō shū remains exclusively under our imperial sovereignty and not under any other countries’ and the lower court properly applied Article 225 of the Code to the case, held the Court.

Historians in Korea have unearthed about a dozen cases at the lower court level involving abduction or kidnapping of women to sell them overseas.¹⁰⁵ Among them, only two can be discussed here. In July 1940, the Taegu District Court convicted Yi Chong-Ok, aged 48, and 10 other defendants, who had been charged with abduction or kidnapping for profit, abduction or kidnapping for overseas transport, embezzlement, and the forgery of official and private documents.¹⁰⁶ In late November 1938, Yi had learned that Pak Nam-Sul, a resident of Taegu, was looking into making her second daughter, Lee Pun-Yŏng, then 16 years old, a kisaeng trainee. Yi had his concubine Kwŏn visit with the ‘illiterate and ignorant’ mother and the daughter and tell them that the girl would meet a good husband and make a lot of money if she would become a foster daughter of someone whom Kwŏn knew well. He then arranged a meeting between the women and a Kim, who operated a referral office in Seoul and was at the time traveling in the Taegu area on a recruiting mission. Kim agreed to hire the girl for a term of three and a half years, at the advance money in the amount of 400 wŏn. The down payment of 50 wŏn was given to the mother. Since the girl was underage, Yi conspired with his accomplice to modify her family register. The latter used ink powder and benzoline paraffin to change the daughter’s birth year on the document from ‘Taishō 12’ to ‘Taishō 10’. The mother presented Kim the falsified family register, the certificate of her seal, a written consent, and a power of attorney. Kim, satisfied with the documents, paid 350 wŏn, the balance of the agreed payment.

The court record included the testimony of Pun-Yŏng’s mother: ‘I believed Kwŏn when she said … it would be good for my daughter. I looked at my daughter, and she said nothing. Since Kwŏn pressed for an answer, I said she could take my daughter away.’ Pak continued: ‘I had received 50 wŏn as a down payment from the man…. He handed 350 wŏn to my daughter, who gave it to me. Yi Chong-Ok said that there were various fees I owed him. After all the fees were taken out, I received at the end only 140 wŏn’. Found guilty, Yi was sentenced to four years in prison; his appeal was dismissed by the Taegu Appeals Court the following month.

The second case, decided at the Kwangju District Court in February 1945, did not involve parents.¹⁰⁷ The defendant, Kayama Masao (Korean name Cho Kong-Sŏp), aged 35, spotted a 17-year-old at a job agency in Seoul. He pretended that he was the manager of a restaurant and said he would arrange to hire her as his assistant. As the court noted, the fact that she ‘did not work as a barmaid before and was a so-called respectable woman (shirōto onna) with no zenshakukin’ must have made her a particularly attractive target. She said she had no parents, although the defendant knew that her parents were alive. He brought her to Sunchŏn and approached a restaurant owner, Shimizu Tanefuku, a Japanese. Shimizu said that his restaurant was currently not in business but he would hire her as an ‘ianfu (shōgi) at his café which was an ianjo’ in Acheng in Manchukuo. The defendant falsely told Shimizu that she carried the zenshakukin in the amount of 3500 wŏn, a substantial sum, which the latter paid. The defendant was caught while trying to obtain travel documents to send the girl to Manchuria. He was sentenced to two years in prison. Shimizu had originally been charged with assisting in the crime but the charges were later dropped.

The first case of 1940 above shows that ubiquitous brokers frequently worked with unscrupulous neighbors in the villages to zero in on the most vulnerable and unsuspecting parents. The second case of 1945 illustrates how some girls, likely wishing to escape from abusive parents and wretched living conditions, walked into recruitment agencies, only to be snapped up by the traffickers. Once snared, they tended to be passed from one agent to another who repeatedly goaded them into moving to new bars and brothels and pocketed the fees. This court record is interesting because it specifically mentioned that the girl was to be hired to work at an ianjo. It affirms that the smuggling of women to work at comfort stations continued nearly to the end of the war. The juxtaposition of ianfu and shōgi, spelled out in the court opinion, shows that the two words were used interchangeably during this time. The term ianfu (wianbu in Korean) was in wide use from the late 1930s. It was a preferred political moniker to dispel the negative image associated with conventional shōgi who were bound by pledged debts.¹⁰⁸ Postcolonial Korean courts regularly used the term wianbu to refer to prostitutes near American military bases.¹⁰⁹

There exists an official document from the colonial period that refers to a named ‘comfort woman’. In 1939, the Chongno Police Station detained a Sin Sun-Im, aged 24, for spreading false rumors.¹¹⁰ She had been recruited in March 1938 by a referral agent and became, ‘in accordance with her parents’ wishes’, a military prostitute in Nanjing. She returned to Korea in August the following year, having repaid the advance money. According to the classified police report, Sin came to the agent’s house and declared, ‘being a shōgi on the battlefront is really dangerous because one must go into the war zone along with soldiers. In the future, no matter what happens, I will not work as shōgi at the gun ianjo.’ She said she had been ‘forced to deal with as many as 70 customers a day in her job and therefore suffered a loss of appetite, abdominal pain, and backache, and was ill several times’. One can gather from these limited facts in the police record that Sin became a comfort woman after her parents took in the advance contract money, suffered greatly at the comfort station in China, and managed to pay back her debts, returning home within one and a half years. How much she knew about her job before she took it, we do not know. At any rate, the authorities were worried about such stories spreading and tried to stop her from talking about her experiences at the comfort station. Sin received a seven-day detention order.¹¹¹

In 1944, a series of advertisements appeared in newspapers, seeking ‘military comfort women’ to work at a combat unit comfort station.¹¹² The classifieds bore the names of private recruiting agencies. Scholars disagree over whether these civilian agents were acting under the order of the military. Again, available evidence is inconclusive about how much the recruits knew about the job. It seems clear, at least, that contractual offers with advance money continued to serve as an effective means of procurement.

IV. CONCLUSION

At the turn of the twentieth century, a disillusioned reader of the English newspaper Japan Times, likely a foreign resident in Japan, wondered: ‘how the general public is benefitted by laws which compel helpless girls to abide by the terms of contracts made by others’.¹¹³ The writer could not fathom how the Daishin’in could hold that the state-managed prostitution system preserved a woman’s freedom and her decision to work to repay her family’s debts was her own choice that must be respected. A half-century later, Kawashima offered an answer, of some sort. What posed fundamental challenges to the judges was the fact that licensed prostitution carried the endorsement of public opinion and legitimacy in law. He wrote:

It is not just that the intelligent judges were ignorant of the structure of trafficking contracts or the true meaning of their terms…. At the root of what worried the judges was that the geishōgi system was officially recognized. The problem was that brothel owners had a legitimate economic interest in the realm of legal relations that also required legal protection.¹¹⁴

The courts were faced with the unenviable task of balancing these conflicting interests. Distinguishing between coerced and voluntary agreement was a difficult question then as it is now. The judicial solutions of prioritizing legal obligations were not convincing to many.

The history of public prostitution in Japan serves as a reminder that we cannot always assume that social and legal norms functioned in the past as we believe they should have functioned today. Despite the rise of vociferous abolitionist movements, the dominant perception during the prewar and wartime years was that state-regulated prostitution was not contrary to public order and good morals under the Civil Code. Article 90 as the essential principle of contractual justice, rather than contractual freedom, was still an unfamiliar notion. Protecting private autonomy was avowedly the guiding spirit of the Meiji contract law. It was not until after the war that the Japanese Supreme Court voided prostitution contracts, referring to the same language of public order in Article 90 but drawing the opposite readings.

In this regard, the situation in colonial Korea complements in an important way our understanding of the developments in the Japanese empire. In Japan, the postulation of prostitution contracts as employment contracts and the invocation of civil law principles obscured certain blatant aspects of the transactions. In Korea, the hurried transplant of the alien edifice of public prostitution led to an explosion of human trafficking, exposing fundamental perils that underlay the system. Overall, the colonial government had neither the resources nor the will to deal with the problems effectively. The colonial legal order based on custom further narrowed the scope of protection for the victims.

This article has suggested that the ill-guided idea of filial piety muddled the boundaries between the legitimate exercise of parental power and its abuse. Make no mistake: most poverty-stricken parents did not hand over their daughters to prostitution. But it is likely that many girls, when not forced, still followed decisions their parents made for them. Sending young girls to the city households to work as live-in aides—called singmo—was common in Korea through at least the 1970s. To be sure, there is no comparison between the two situations, but the point is that parents held sway, generally speaking, over their children. In the desolate colonial reality, uninformed and desperate parents became ready targets of criminals and grievous circumstances could befall their daughters. Investigation into whether military funds were made available to recruiters to offer advanced loans would be one way of clarifying the link between civilian and military enterprises. Regardless, one should reiterate that focusing on civilian traffickers and financial arrangements is not shifting responsibility away from the Japanese state and the military, either for their acts or for their omissions to act.

Determining the extent to which women at the comfort stations were free and willful individuals acting on their own sense of agency, docile victims of parental abuse, or tragic prey to criminality implicating the state and the military requires continuing serious research. At a minimum, the procurement of women in imperial Japan and colonial Korea affirms the truism that most past events had many causes and there is good reason to reject the idea that one must choose among possible explanations.

Finally, current historiographical debates may benefit from going beyond trying to disprove arguments that no one defends. Reducing the mobilization of women to episodes akin to slave raids is rarely helpful in clearing the turbid depths of the comfort women question. Scholars would do well to bring their opposing views into dialogue, rather than talking past one another.

I thank the anonymous referees for their valuable comments. This research was assisted by a grant from the Abe Fellowship Program administered by the Social Science Research Council in cooperation with and with funds provided by the Japan Foundation Center for Global Partnership, and was also supported by the Korean Studies Grant Program of the Academy of Korean Studies (AKS-2022-R-032). The final revision of this article was completed during my stay at the Käte Hamburger Kolleg Münster ‘Einheit und Vielfalt im Recht’ in Germany.

Footnotes