CRIMINAL LAW IN THAILAND Part 45: Sex crimes _ underage prostitutes

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CRIMINAL LAW IN THAILAND Part 45: Sex crimes _ underage prostitutes






Over the last few weeks we've seen that Thai criminal law does not impose major penalties for prostitution between consenting adults. This lax approach is in contrast to how Thai law treats those patronising underage prostitutes.

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Under Section 8 of the Prevention and Supression of Prostitution Act, if the prostitute is aged 15 to 17, the customer would be subject to a fine and imprisonment from one to three years.

If the prostitute is under 15 years of age, the customer would be subject to a larger fine and imprisonment from two to six years.

It is interesting to note that the offences punished by Section 8 are only those that occur in a ''prostitution establishment''. Last week, we mentioned that punishment of prostitution between adults in a private home or hotel room was unheard of because in that context these places are generally not considered ''prostitution establishments''.

This is not the case with underage prostitution.

Even a private house or hotel room could be considered as falling within the definition of a ''prostitution establishment'' to punish those who procure the services of underage prostitutes.

People have been punished for using the services of underage prostitutes in their hotel rooms.

This is a grey area of the law. Section 4 of the Suppression of Prostitution Act defines a ''prostitution establishment'' as:

- A place established for prostitution or;

- a place in which prostitution is allowed or,

- a place used for soliciting or procuring emanother person for prostitution.

Arguably, anywhere prostitution occurs, it is being allowed in that place, so the second definition could be applicable even to the customer's home or hotel room. Where public policy favours such an interpretation, such as in the case of underage prostitution, the law can be interpreted that way.

What about possible defences for those arrested for underage prostitution?

What if the person you hired looked a lot older than 17? Is this an adequate defence against such a charge?

Let's look at a couple of examples.

You walk into a bar and strike up a conversation with one of the girls. Since you don't want trouble, you ask her how old she is, point blank. She says 20. An hour later the police burst into the room at the short-stay hotel you've taken her to and arrest you for consorting with an underage prostitute under Section 8. It turns out that she's 17. You are charged, and face real jail time, even though you did ask.

Here's another example. You are so concerned about avoiding the penalties of the act tied to the underage issue you find an escort service on the web that has a disclaimer saying that all employees of the service are certified to be over 20 years of age. Furthermore, you call the service and ask to speak to the owner, who promises to introduce you to someone who is well over 18.

You go to meet your escort in a club in a red light district. An off-duty policeman sees you with her and arrests you because he knows she's only 16.

Can you be prosecuted in these cases? It is a general principle of Thai law that ignorance of the facts (in this case, not knowing that the prostitute was under 18) can only be used against you when the law in question specifically provides for guilt in such an instance.

For example, Article 59, paragraph 3 of the Criminal Code provides that if the defendant does not know the facts constituting the elements of the offence, it cannot be deemed that he or she desired or could have foreseen the effect of his or her acts.

Section 8 of the act doesn't say anything about guilt if you were ignorant of the prostitute's age. Thus, if you really didn't know her age, you could use this as a defence to a charge of violating Section 8.

But here we get into a what lawyers call a question of fact. Anybody who is charged with having sex with an underage prostitute is going to say he didn't know her age. Thus, though you might make this claim, a judge, looking at the totality of the circumstances, and seeing the sex worker involved, might think it obvious that you really knew she was underage and allow the prosecution to go forward anyway.

In this case, what we call due diligence is important.

In both of the above examples, you would say you were told the prostitute was over 18.

In the second case, you would have additional points to make. For example, you would argue that you checked the website's certification and were told by the madam that none of her employees were underage. A judge, after seeing the sex worker involved, might not believe you, but with this additional proof your argument would be stronger than in the first case mentioned.

In light of the above, it's an understatement to tell you that if you're going to hire a hooker, you'd better be careful about that person's age.
 
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