CRIMINAL LAW IN THAILAND Part 50: Sex crimes _ underage sex. Who's the victim?

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Dave The Dude

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CRIMINAL LAW IN THAILAND Part 50: Sex crimes _ underage sex. Who's the victim?











Here's an example of underage sex under Section 277 of the Thai Criminal Code that illustrates that the legal system can play for keeps. Let's say you live and work in Thailand, but your 17-year-old son is in his first year at university in Australia.

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For the Christmas holiday he visits you and stays at your flat for a month. He's a good boy and loves to hang around with you and your wife. One night, though, you encourage him to go out by himself. One of your colleague's daughters, a university student in Thailand, is having a party and your son has been invited. Though he doesn't really want to go to a party where he doesn't know anyone, you think he should get to know a few people in town, so he goes.

The rest is history. At the party he meets a sister of one of the classmates of the hostess. The next night she invites him for dinner at her parents' house and before you know it they are inseparable.

A couple of nights later you and your wife take them out to dinner. The girl is a charming young lady and has a lot in common with your son. She looks forward to a career in IT and wants to travel the world. She speaks perfect English, and has attended international schools in Bangkok since childhood.

You know they are going to a hotel together, but at first you don't worry much about it. She's more mature than he is, and you think it's a good experience for him at this stage of life.

But as the days go on, your son is out of the flat more often and you start to worry that things may be going too fast. After all, she's only 14.

Then you see signs of your own anxiety in your son's face. He confides to you that the girl is now making long-term plans for which he's not ready.

You counsel him to take things easier. Take a few days off from seeing her, you suggest. She's a nice girl, but you're both young. No reason to hurry things.

So he stays home for a few days. The girl calls every hour. The situation has become a crisis for your family, because it's ruined the holiday, and everything's taken a black turn.

You're surprised at the office the next day. Your assistant receives a call from the girl's father. He expresses anger at the way your son has treated his daughter. He tells your assistant that this will lead to ''consequences''. He hangs up. You are so surprised by this turn of events that you can't figure out what to do.

The next morning the police show up at your flat. They escort your son to the police station where he is questioned in English by a police officer through a translator. The next day he's charged with a violation of Section 277 because the girl is only 14 and it is a crime to have sex with anyone under 15. Your lawyer explains to you that if convicted of a violation of Section 277, your son could face a stiff fine and from four to 20 years' imprisonment.

You are shocked. Of course, you think that a man of 50, fooling around with a girl of 14, deserves what he gets. But this is different. This is something that has happened between a two very young people. Is this fair?

Whether it's fair or not, Thailand is not unique in the way its legal system deals with such matters. In a recent case in the US an outstanding high school athlete was arrested with his girlfriend in a hotel room. He was only a couple of years older than she, but did went to prison before finally being released after a public outcry.

In Thailand, there is a unique clause in Section 277 relating to the situation we are discussing. If the accused is not over 18 and the victim is over 13 and if the court permits them to marry, the penalty mentioned above will be inapplicable. This applies only in cases where the victim consented to sex with the accused. One may see this provision as not much more than a legal statute forcing a shotgun marriage, but when one's back is to the wall, a wise person considers all options.

Thai law does give the judge wide discretion in applying a sentence in a case like the one above, because of the age of your son, the defendant.

In the case of a defendant over 15, but under 18, Sections 74 and 75 of the Criminal Code give the judge the discretion to:

- Reduce the sentence by half.

- Admonish the defendant and/or parents

emor guardian and not further punish the defendant.

- Place the defendant in the care of parents, guardian or person with whom the defendant resides and require that these parties ensure the defendant does not cause further harm, setting a fine not exceeding 10,000 baht against these parties in case the defendant does do so.

- If the defendant is placed in the hands of one of the above parties, appoint a probation officer or other official to ensure rehabilitation and that society is protected. These goals may be sought in several specified ways, such as giving counselling, requiring occupational training or requiring drug treatment.

- Place the defendant in a school or training institution for a period of up to the defendant's 18th birthday.

The judge can modify such a decision if the circumstances change to warrant modification.

We have received questions about how age is calculated for the purpose of statutory rape.

In Thai-Chinese circles, if someone asks a baby's age three days after it is born, the parents may say it is one, because the child is in its first year of life. Likewise, in the same circles, if someone asks the age of a young person who was born 14 years and one day ago, they may be told she is 15 for the same reason _ she is in her 15th year. This is not, however, how age is calculated for the purpose of Thai law. The Thai legal system follows the Western standard.

So, for the purposes of statutory rape, a person born 14 years and one month ago is considered 14 years old, not 15.

We understand the harshness of the situation mentioned above. And of course, these laws are seldom applied.

However, those visiting Thailand, particularly as students and young travellers, should understand that one has to be careful. In many ways, Thailand is a tolerant crossroads in Southeast Asia. But it is also a traditional Asian society and many laws on the books in the country reflect this fact.
 
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