'Consensual' Rape

'Consensual' Rape

A 16-year-old girl was used as a sex object and filmed. The question of whether she gave her consent to a soldier with a uniform and a gun in a war zone is absurd

Residents of Yarang district, Pattani are calling it ''rape''. Fourth Army chief Lt Gen Udomchai Thammasarorat is calling it a ''romantic liaison.'' Some Thai-language dailies are calling it ''rape''. Other newspapers are calling it a sexual ''tryst'', as it was labelled in a Bangkok Post headline on Friday.

Comments from those who have watched the clip include:

''That's not rape.''

''It's consensual.''

''She wasn't fighting. It's not rape.''

''She only struggled to hide her face from the camera.''

''It looks like they are just cuddling.''

So was it rape or was it consensual?

There's a fine line between cuddling and holding someone down so that they can't get away.

The victim is 16 years old. The army private was a draftee, which means he is at least 21 years old.

On the night of Jan 22, a private identified only as Winai either ''made a date'' with, or ''lured'' a 16-year-old Muslim girl to a secluded corner of the district hospital, situated near the local army outpost.

This was where the ''rape'' or ''sexual tryst'' occurred, while another private identified as Yot filmed the act.

In the clip, there was no visible physical struggle between Pte Winai and the victim. However, the victim clearly tried to hide her face from the camera. Pte Winai meanwhile smiled and laughed at the camera, with the voice of Pte Yot urging him on.

Later Pte Yot sent the clip to his friends, who then passed it around. The clip finally turned up on the mobile phones and computers of friends of the victim. Upon learning of the clip and the incident, the victim's parents informed local authorities.

Wadouramae Mamingji, chairman of the Islamic Association of Pattani, said that the locals are angry, that the issue is very sensitive to local culture and that it hurts both the victim and her family.

He suggested the two army privates be punished to the full extent of the law, that the army outpost be moved out of the area and that the victim be compensated.

Lt Gen Udomchai said relationships between soldiers and residents violate Fourth Army regulations and the two privates have been punished. However, he was also concerned that a third party could exploit the issue, which he said could fan mistrust between soldiers and residents.

The two soldiers have been transferred to the Ingkayutthaboriharn army camp in Pattani's Nong Chik district.

The Fourth Army chief said the public should be open-minded about the issue and that he was told the girl agreed to meet the two army privates herself. But regardless of what Lt Gen Udomchai was told, the question is was it rape or consensual?

This column will not exploit the issue and deepen mistrust between soldiers and residents, in keeping with what the Fourth Army chief cautioned. Rather, it will expose the issue and expand the possibility of justice for a girl, who this column will insist is a victim of a crime regardless of whether she consented to the act.

Section 279 of the Criminal Code states that 15 years old is the age of consent. Be that as it may, Section 283 states that acts classified as ''obscenity for personal gratification'' with a person under the age of 18 is a compoundable offence even with the consent of the person.

The punishment is not more than five years imprisonment and/or not more than a 10,000 baht fine. The legislation applies to all persons regardless of gender or sexual orientation.

The girl is 16 years old. Having sex with her is an act of ''obscenity for personal gratification'', whether she consented or not. Filming the sexual act constitutes as ''obscenity for personal gratification'', regardless of whether she consented, which her hiding her face from the camera shows she did not.

Therefore, rape or not, the punishment already dealt to the two privates for having violated Fourth Army regulations and the subsequent transfer should not be the end of justice.

A proper court martial on charges of violating two counts of Section 283 of the Criminal Code must be the next chapter in this tragic story _ that is if the victim and her parents are willing to pursue the case. After all, it's the victim's right to choose to pursue the case in the interests of justice, or let the matter rest to avoid being put in the public spotlight and emotional trauma.

An important issue in the big picture is what constitutes rape. The differing newspaper headlines and opinions of those who have seen the clip speak to a great need for debate in society.

On a related note, the fact that journalists view the clip to report the news is a moral dilemma in and of itself. The clip is pornography.

But turning a blind eye, a deaf ear and silencing oneself in the name of ''sensitivity'' is tantamount to sweeping the crime under the carpet, thereby indirectly helping the culprits go unpunished and legitimising the heinous act. To see no evil, hear no evil and speak no evil guarantees that evil will prevail.

Rape is a term that suffers from over-simplification. Traditionally, people think of rape as exclusively in the realm of evil perpetrator(s) hiding in a bush or dark alley, surprising and grabbing an unfortunate woman passing by, which then leads to a brutal physical struggle, with after-the-fact evidence including blood, bruises and a broken body and spirit. This is an ignorant and male-oriented view.

The commonly accepted definition of rape _ in the eyes of the civilised world _ is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of informed consent.

Soldiers wear uniforms and carry guns, they are persons of authority. Two adult soldiers in a war-torn southern province are authority figures whose very presence alone constitutes a threat and coercion.

A 16-year-old girl was used as a sex object and filmed. The question of whether she gave her consent to a soldier with a uniform and a gun in a war zone is absurd.

According to the laws in some countries, this would be a case of statutory rape at the very least.

Tears, screams, punches, bites and scratches are not the only proof of rape. The key word is ''consent''. The perpetrator may be a stranger, friend, coworker, boyfriend, husband or family member. A victim may consent physically, but if the consent is given under duress, coerced through threats of physical harm, blackmail or any other form of intimidation, it is what it is _ rape.

When a person is being forced against his or her will, even if the person doesn't struggle physically, it is what it is _ rape.

The person may have given physical consent, by yielding, but if there is not mental or emotional consent, it is what it is _ rape.

Rape is not an easy topic to discuss. It's taboo and carries a social stigma. In Thailand, women's rights activists struggle to make society understand the different forms of rape and how they affect women and society's mentality. In many countries, including Thailand, date rape and coerced sex are still considered normal and practised widely by many. It is endemic.

To protect the rights of women, society must understand that while ''no means no'', a ''yes'' can be the result of coercion.

In the end all such acts are what they are _ rape, a heinous act that must be condemned.

Contact Voranai Vanijaka via email at voranaiv@bangkokpost.co.th

Voranai Vanijaka

Bangkok Post columnist

Voranai Vanijaka is a columnist, Bangkok Post.

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