CRIMINAL LAW IN THAILAND Part 49: Sex crimes _ when the waitress delivers more than t

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CRIMINAL LAW IN THAILAND Part 49: Sex crimes _ when the waitress delivers more than the bill






This week we will examine some scenarios by which the prostitution laws of Thailand may snag you. In situations like the ones we will discuss, you could find yourself accused of some of the strictest provisions of Thai law relating to prostitution, without even thinking you have committed a crime.

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Several months ago, we did a series about how to own a bar or restaurant. We said that there are thousands, even millions, of foreigners who wake up every morning in cold places dreaming about owning a bar or restaurant in a little town near a beach in Thailand.

Let's say you are one of the lucky few living the dream. You own a minority share in a little place on a winding alley. Most nights the breeze from the Gulf of Thailand lifts everybody's spirits. You specialise in simple dishes from your home country and have a regular clientele. Everything's been done by the book. You've invested over two million baht, have a work permit and manage the place yourself.

Your restaurant has six or eight employees _ a cook, a cleaner and the girls. The girls are waitresses and mix drinks for the customers. A couple are university educated. All speak at least two languages. They're charming, funny and high-spirited. They often drink and play pool with the male customers and the sound of laughter is often heard from the street. So your business is prospering.

You don't think of the girls as prostitutes. They do occasionally go home with the regulars, but they certainly wouldn't do so with anyone they didn't like. Sometimes they charge, sometimes they don't. If this happens before closing, they're supposed to collect a small bar fine from the customer, which they put in the register. It's such a small amount _ just a few hundred baht _ the customers consider it a joke.

Is there a problem?

You bet.

Section 11 of the Prevention and Suppression of Prostitution Act says that the administrator or manager of a ''place of prostitution'' is exposed to a fine and from three to 15 years' imprisonment. Even though it's casual, your business is a place of prostitution, because sex is being sold there. The Thai Criminal Code adds all kinds of potential additional penalties to this, discussed in previous weeks, especially if any of the girls happens to by younger than 18.

What if you own the same place but you have rules against the girls going home with the customers. On the side, a couple of the girls do sell sex to the customers, but there's no bar fine and you're not aware of it.

This one's a little more difficult to analyse.

If you're really not aware of what's going on, Section 59 of the code would protect you, because it generally limits criminal liability to intentional acts, unless the law in question specifically allows criminal liability without knowledge that the illegal act is taking place.

Section 11 does not contain a provision making those who commit the acts it prevents liable even if they don't know, so you have an argument. But as discussed in earlier columns, many criminal defendants claim they didn't know something illegal was going on. It's up to a judge to decide if they're telling the truth. Thus if the judge buys the story that you really didn't know, you're off the hook.

There's another important distinction you should be aware of here. As we said, if you didn't know someone was selling sex from your place, you may have a defence. But what if you knew it was going on, but truly didn't know it was illegal? This latter is no excuse in a case like this. The law presumes that everybody understands it rules, even though this is not always true.

Here's one more variation. Let's say you're not the manager but a passive investor. The same place mentioned above is managed by somebody else and you own 10% of the shares of the company that operates the bar. The girls operate on the bar fine basis discussed.

You go there occasionally, but only to bring friends, and don't operate, manage, cook, bartend, supervise or otherwise work there. And you don't have a work permit. You are living in Thailand on a retirement visa. Furthermore, you don't work anywhere else; you're just a small investor in the bar.

On its face, Section 11 might nail you, because it applies to the ''owner of a prostitution business or the supervisor or manager of a prostitution business or prostitution establishment, or the controller of prostitutes'' in such an establishment.

Though you are an equity owner in this business, this section of the act is interpreted to require more active involvement than just owning shares. If you were involved in even a small amount of management or supervision of the place, however, you would be exposed, because then your role would be considered active.

To summarise what we've discussed about prostitution in recent weeks, discreet paid-for sex between consenting adults may be a crime on the books, but is unlikely to get you arrested in Thailand. When there is advertising or the the initial contact with the prostitute is in public, it can expose you to penalties, but the penalties are small for the prostitute and the customer. If, however, there is even the hint that someone involved in selling sex is under the age of 18, beware, and get out of there. The penalties are stiff, and reflect the Thai societal norm of protection of the young.

Likewise, if you're in the restaurant or bar business, be aware that if sex is being sold there _ even casually _ you may be exposed to criminal penalties
 
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