Ruling on rape

In Thailand, there's a growing discussion – and an accelerating debate - on how to define, legislate and enforce laws against this most heinous of crimes

Rape always brings with it devastation -- to the victims, their families and even the public that learns of such crimes. The condemnation is loud, a cry for harsh punishment up to the penalty of death -- a solution many believe can put an end to rape.

But is the death penalty the only way to end rape in our society?

From the Bangkok Post's previous reports, rape occurs about 30,000 times a year in the country -- meaning that every 15 minutes, someone is being raped. However, only about 4,000 cases are actually reported to authorities. Those that end with the perpetrators incarcerated are even fewer. Startlingly, many of the victims are very young girls in kindergarten.

Just recently, an amendment to the penal codes put the spotlight on the issue of rape and sexual assaults, and the punishment that rapists can get for their crime. Many netizens rejoiced when learning of the possibility of the death penalty, which applies if the rape victim dies. This amendment also offers a definition of what constitutes rape, and also expands to cover the punishment for recording and sharing images and sounds of rape.

The new "rape law" sure brought with it heavy discussion, and also earned itself concerned looks from human-rights activists and social workers who pointed first to its limited definition of rape.

According to the amendment, rape consists of a perpetrator's sexual organ being inserted into the victim's genitals, anus or mouth. Insertions of objects or other body parts, on the other hand, are defined instead as sexual assault, which many feel neither carries nor reflects the same degree of severity and damage done to the victim.

"It's quite a narrow definition which focuses only on intercourse," said Jaded Chouwilai, director of Women and Men Progressive Movement Foundation, which assists rape victims. "In real-life cases that we've found, rape may include the insertion of fingers and other equipment. While it still constitutes sexual assault, and the penalty received by the assailants is similar to rape [as defined by this law] anyway, from the victim's point of view, especially women who have been violated, they felt that they lost a lot more for this crude act to be passed as just sexual assault, not rape."

The definition of rape in Thai law has gradually evolved over time, said Naiyana Supapung, director of the Teeranat Kanjanauksorn Foundation, which works for gender and sexual justice. From initially covering female victims, the law is now somewhat more gender-inclusive. Still, it retains its focus on insertion, which Naiyana said is tied to the society's mindset that values a woman's virginity. The form of rape today comes in variations, as Jaded has elaborated, and some cases are also committed in a homosexual nature. The law should be able to acknowledge and encompass different angles of the crime.

In addition to the new definition, one of the most discussed topics surrounding this legal amendment is the prospect of capital punishment and other increases in punishment, which the two activists said are not too different from before. But while society at large says the death penalty and harsher punishments are needed to solve the problem, are they really effective in doing so?

Jaded invites everyone to look beyond the law into enforcement. The law is simply one tool, and not the only thing it takes to combat this problem.

"Many rape cases end in settlements out of court at the encouragement of the police officer. This even included cases involving underage children. Some of the perpetrators are powerful people, or are employers of the victims, and they end up talking to the police to clear up the problem.

"Even with heavy penalties, if the enforcement fails to accommodate the victims, then the problem remains hard to fix. On top of settlements, some policemen approach this issue with lack of sensitivity, sometimes using words that torment the victims even more, which include criticising their clothes to suggesting that female victims go with the rapist willingly," said Jaded. He insisted that settlements out of court shouldn't be allowed for rape cases, which current law still allows in marital rape and other scenarios.

Naiyana opines that giving the death penalty to rapists may lead them to murder the victims for fear of being identified and punished, instead of deterring them from committing such crimes in the first place.

As for enforcement, she says it's unfortunate that victims have to prove themselves and recount their bad experience constantly to law enforcers and courts. In some other countries, those being accused have to prove they're innocent.

"It's like victims are being raped again by the justice system," said Naiyana.

Jaded said that another factor attributed to rape is patriarchy. Rape is usually born from such male-dominated mindsets, with stimulation from alcohol and drugs

"We found men who say they rape because they can't stop themselves. When men feel sexual urges, they were taught, they can act on it, unlike women. This sort of mindset has been passed on from family, to education and media. We see the handsome leading man on a lakorn raping the leading lady and they fall in love with each other. This is just unreal.

"We always hear that rapists deserve the death penalty. But the death penalty has been around and still we never see these statistics getting better because of ineffective law-enforcement and other factors. So, regardless of the law, if this sort of mindset and social structure remain, the problem is unfixed."

He suggested that one possible form of prevention is through sexuality education from a young age, for all to understand and respect one another's rights equally regardless of gender. The Ministry of Education has to work on this. The space for learning should be open to law enforcers as well.

People also have to be aware of and accept that, in many cases, rapists are no strangers to the victims. Some are even family members, including fathers, stepfathers, uncles, relatives, or teachers who abuse their seniority and power towards unsuspecting youths. Jaded said that, with the prevalence of rape of this nature, it also means many of the victims are adolescents and children, who may not dare to report the cases out of fear of and relationship with the rapist. This requires the family and community to keep an eye out for one another.

The law should also expand to cover sexual harassment, such as ogling, dirty talk and lewd comments made on social media, added Jaded.

As for the state, the correctional system today may, in some cases, further stigmatise and oppress perpetrators until one day they repeat their crime.

"Our Department of Corrections hasn't really been successful in making people feel guilty of their crime. They do focus on control and security [but not as much on rehabilitation]. But we're also seeing different facilities trying to improve this situation," said Jaded, suggesting that one could learn from activist Ticha Na Nakorn, the director of Baan Kanjanapisek Juvenile Vocational Training Centre, who works in rehabilitating troubled youths with proven results. Ticha operates in the belief that no child is criminal from the start, but they may have made bad decisions in their life, which should be treated with mercy and understanding. They're also a product of our own society.

Naiyana added that, whenever a crime is committed, people often blame the perpetrator alone, and this frees many from taking responsibility.

"For someone to become a criminal or rapist, so many parties are involved, from school and family to personnel within the justice system and those governing the country, because this means we don't truly have a safe space in this society," said Naiyana.

She insisted that the justice system will need to involve different professions, such as psychologists, social workers and doctors, and open up a space for them to work with law enforcers with ease to make the process more convenient for victims. Also, more female staff are sorely needed.

"For sexual violence to end, society shouldn't think that the only means to do this is through the death penalty. I really understand that the victims and their families are hurt, but I also want them to see the root of the problem, that it's not just the perpetrators themselves but also from the attitude molded by society. If we only focus on the law and not on other factors too, there will be no change and cases will just continue to build up," concluded Jaded.


NEW PENALTIES FOR THOSE CONVICTED OF RAPE

- Rape of a child under the age of 15

Penalties: Five to 20 years in prison and a fine of between 100,000-400,000 baht

- Rape of a child under the age of 13

Penalties: Seven to 20 years in prison or a life sentence and a fine of between 140,000-400,000 baht

- Rape where guns, explosives or other weapons are involved, or gang-rape of a child under the age of 15

Penalties: A life sentence

- Rape where guns, explosives or other weapons are involved or in which the victim suffers severe injuries

Penalties: Fifteen to 20 years in prison and a fine of between 300,000 and 400,000 baht or a life sentence

- Marital rape in cases in which the couple wishes to remain together as spouses

Penalties: Courts may hand down a lesser sentence than stipulated under the law or it may order behavioural controls in lieu of a sentence

- Rape where pictures, videos or audio of the assault are recorded for personal or other people's gratification

Penalties: The prison term is increased by a third

- Distributing photos or audio recordings of a rape or sexual assault

Penalties: The prison term is increased by half