Patcharawalai Wongboonsin, Ph.D

Human Development & Migration Studies Centre
College of Population Studies
Chulalongkorn University

Legislative Regimes against the Trafficking of Underage Prostitutes in Thailand
 

Human trafficking for sexual exploitation was one of the most challenging problems in the 20th century and is still a major concern in the 21st century.� The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, supplementing the UN Convention against Transnational Organized Crime defines trafficking in persons thus:

“….the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

Based on this definition, Thailand was a major sending country of human trafficking for sexual exploitation to more advanced economies within and outside Asia.� Thailand has lately turned more into a country of destination, origin, and transit for human trafficking.� However, the degree of human trafficking into Thailand is still a mystery.� Estimates of the number of trafficked victims vary from source to source, ranging from 20,000 to hundreds of thousands.

As such, it is a major concern in Thailand.� At the national level, Thailand put its first anti-trafficking law, the Trafficking in Women and Girls Act into effect in 1928 to add to its 1908 Contagious Diseases Prevention Act, which aimed at controlling sexual-related diseases at the national level.� One explanation for this was the increase in the number of foreign nationals in Thai brothels.

The 1928 Trafficking in Women and Girls Act prohibits trafficking in women and girls, while providing protection to a certain extent to the victims.� This is reflected in section 7 of the Act, which stipulates that women and girls who have been trafficked into Thailand are subject to exemption from imprisonment and/or fines.� Before deportation, the trafficked women and girls are to be sent to a state reform house for 30 days, a period which can be extended by the decision of a judge. The Act requires Thai authorities to arrange and bear the cost of repatriation to the country of origin of the victim.�

Subsequently, several relevant laws were added.� Many of them are still enforced and applied when and where appropriate, with emphasis on the prevention and suppression of underage prostitution and the rights of forced prostitutes and trafficked persons, and with reference to international human rights standards.� Among others, the Penal Code 1956 prohibits procurement for the purpose of prostitution.� Severe punishment was stipulated for abuses against girls forced into prostitution, particularly if the girl is under 18 years of age.� The penalties become harsher for offences against girls under 15 and 13 years of age.�� The penalty for forced sexual intercourse with a women "who is not wife, against her will, by threatening her by any means whatever" includes 4 to 20 years imprisonment and a fine of 8,000 to 40,000 baht, according to Section 276 of the Penal Code.�� It is a statutory rape in case of sexual intercourse with a girl under 15, even if with her consent, according to Section 277.

Thailand has also made prostitution illegal for decades.� Harsh laws have been passed to eliminate forced prostitution.� Efforts have recently been geared more and more towards prevention and eradication of underage prostitutes, particularly through trafficking rings, regardless of consent.� A set of more severe penalties have been issued against brothels, clients, procurers and parents who sell their daughters.

In 1960, the Suppression of Prostitution Act (Prostitution Prohibition Act) was enacted.�� The Contagious Diseases Prevention Act was accordingly repealed.� However, in 1966, when the Government was seeking to increase state revenue from the "Rest and Recreation" activities of the US armed forces stationed in Vietnam, the Entertainment Places Act was also enacted.� It paved the way for sexual services under the guise of special services to be legalized in entertainment places. According to the Act "Entertainment Places" include massage parlours, bars, night-clubs, tea-houses, etc.� Yet, the Act allows such places to operate only under a license, which can be obtained from local police stations. The use of licensed establishments for prostitution is illegal.� One may note that the Act sets 18 years as the minimum age for women to work in such establishments. �It sets the penalty for employing under-age women up to 2,000 baht.

The Thai Immigration Act of 1976 prohibits entry to Thailand of those engaging in prostitution, trading in girls and other immoral activities.�� Any one who "brings or takes an alien into the Kingdom” is liable to� imprisonment for up to 10 years or a fine up to 100,000 baht.

In 1996, the Prevention and Suppression of Prostitution Act, or the 1996 Act, came into force to eliminate prostitution by making it an illegal activity.� While replacing the Suppression of Prostitution Act, the 1996 Act prohibits prostitution and solicitation for prostitution, both male and female, in public places while setting the penalty for offering sexual services and for maintaining a prostitution establishment.�� While continuing to make prostitution illegal, it reduces the penalty for the prostitute to a fine of 1,000 baht (Section 5). The Act further stipulates that the prostitute is not deemed to have committed an offence if the prostitution is forced.

The 1996 Act defines prostitution as sexual intercourse, or any other act, or the commission of any other act in order to gratify the sexual desire of another person in a promiscuous manner in return for money or any other benefit, irrespective of whether or not the person who accepts the act and the person who commits the act are of the same sex.�

According to section 5 of the Act, any person who, for the purpose of prostitution, solicits, induces, introduces herself or himself to, follows or importunes a person in a street, public place or any other place in an open and shameless manner or causes nuisance to the public, shall be liable to a fine of up to one 1000 baht. It further stipulates that any person who associates with another person in a prostitution establishment for the purpose of the prostitution of himself or herself or another person is subject to imprisonment for a term up to one month and/or to a fine of up to 1000 baht.� Nevertheless, if the offence is committed on account of compulsion or under influence which cannot be avoided or resisted, the offender is not guilty (Section 6).

The 1996 Act makes it a serious crime to engage a prostitute if she is under 18.� According to Section 8 of the Act, a person who, in order to gratify his or her sexual desire or that of another person, has sexual intercourse or acts otherwise against a person over 15 but not over 18 years of age in a prostitution establishment, with or without his or her consent, is liable to imprisonment for a term of one to three years and to a fine of twenty thousand to sixty thousand baht.1 � The law defines prostitution establishment as a place established for prostitution or in which prostitution is allowed.� It also includes any place used for soliciting or procuring another person for prostitution (Section 4).
It is also a crime for customers, procurers, brothel owners, those who force children into prostitution and even parents under the 1996 Act.� They are subject to long prison sentences as well as large fines. 2 In the event of serious injury or death to the victim, the penalty shall be life imprisonment or capital punishment.

Section 14 of the 1996 Act establishes a Committee for the Protection and Development of Occupation to consist of the Permanent Secretary for Labour and Director-General of a number of departments including Employment, Public Welfare, Local Administration, Community Development and Education and a representative of the National Commission on Women’s Affairs.�

The Act requires convicted prostitutes to be rehabilitated with medical treatment and to receive vocational training in a protection and occupational development centre for a maximum period of two years.�� Any private foundation, institution or association with the objective in prevention and rectification of prostitution problems can file an application with the authority to establish a primary shelter or a protection and vocational development premise.

Given that the Entertainment Places Act is still in force,sexual services is available in a number of forms, in the guise of “special services” if they are offered at entertainment places, such as bars, go-go's, massage places, etc.

In 1997, the Measures in Prevention and Suppression of Trafficking in Women and Children Act came into force.� The 1997 Act does not provide a definition of “trafficking in persons” but in Section 5, it says:

“In committing an offense related to woman or child trafficking, buying, selling, disposing of, taking from or sending to any place, accepting, detaining or confining any woman or child, or arranging any woman or child to act or render any act in responding sexual gratification of another person or for an indecent purpose or for unlawful benefit of the offender or another person, with or without consent of such woman or child, and such act is an offense under the Penal Code, the law on prevention and suppression of prostitution, the law on child and youth welfare or this Act, the competent official shall have the power to execute this Act."

According to Section 7 of the 1997 Act, whoever, two persons and/or more, conspire to commit any of the offences as specified in Section 5 shall be punished with imprisonment up to five years and/or a fine up to ten thousand baht.�

In order to prevent and suppress the trafficking in women and children, Section 9 of the 1997 Act stipulates that the official shall have the authority as follows:

  1. To issue a summon to any person to give statement, deliver documents or evidence;
  2. To examine a woman or child, with a reason to believe that s/he is a victim of the offence as stipulated in Section 5.� If the victim is a woman or a girl, the examiner shall be female;
  3. To search any place or vehicle, only between sunrise and sunset.� In case there is reason to believe that the woman or child may be assaulted if the action is not immediately taken, or the offender may relocate or conceal that woman or child, the official may search the place at night time with the permission of the Director General of the Police Department or person designated by the Director General in the jurisdiction of Bangkok, or the provincial governor or person designated by the provincial governor in the provincial jurisdiction for the search in such province.

Section 10 of the 1997 Act provides that for the benefit of prevention and suppression of the offence as specified in Section 5, or for rescuing a women or child who may be the victim of such offence, the official has the authority to detain the woman or child for factual clarification, or checking documents or evidence. �The detention shall not be over one-half hour.� In case of necessity for longer detention, the woman or child can be detained no more than twenty-four hours after the detention is recorded in an official report.� The detention must be reported to the Director General of the Police Department in Bangkok jurisdiction or the provincial governor of such provincial jurisdiction without delay.

The official is subject to use his/her judgment in giving appropriate assistance to the woman or child, who is the victim of the offence as specified in Section 5, in providing food, shelter, ad repatriation to his/her original country of residence.� The official may arrange for the woman or child to be in the care of a “primary shelter” provided by the law on prostitution prevention and suppression, a “primary shelter for children” provided by the law on child and juvenile safety and welfare, or other governmental or non-governmental welfare institutions, according to Section 11 of the 1997 Act.

To better protect victims of trafficking, the 1997 Penal Code Amendment Act (No. 14) redefines sexual offences to include the procurement or trafficking of boys or girls for the purpose of sexual gratification.� All children under 18 are protected under the law, regardless of whether they had given consent or not, with offenders facing fines and imprisonment.� The Act imparts Thailand with the authority to prosecute anyone who procures or traffics any adult or child, no matter where the offence is committed and regardless of the victim’s nationality.� This provides Thailand with extraterritorial jurisdiction over cases of rape and other forms of sexual abuse.

In 2000, the 1999 Criminal Procedure Amendment Act came into force.� It replaced the earlier version, which had led to unnecessary trauma for victims of child abuse, who were coerced into describing the circumstances of abuse to several different authorities during the investigation and trial.� Victims had to face their abusers in the courtroom and submit to cross-examination. �Furthermore, during the delay prior to the trial, the children were often bribed or threaten to manipulate them into changing their testimony. 3� The 1999 Criminal Procedure Amendment Act allows children to give videotaped statements, to avoid repeated questioning, and to provide evidence to the court via video link.� The assistance of a social worker or psychologist is required during the police’s questioning session with children.� The prosecutor of the victim may also request that the victim or a witness present an early deposition if the offender has not yet been identified, or if it would be difficult for the victim or witness to attend the trial.

In 2003, the Witness Protection Actwas introduced to provide the following protection for witnesses in criminal cases: pornography related; offences committed against children; offences in violation or protection and elimination on human trafficking, especially on women and children.� The Act defines a witness as a person who will give or lead to the truth to the officers who have authorities in investigating, interrogating criminal cases including experts.� It excludes defenders who claim himself as witness.

The first Child Protection Act was introduced in 2004.� It requires the development of tools to categorize children in need of protection.� A process to develop a minimum standard for child care and risk factors index according to the Act was started.� A task force for developing the tools was appointed as the official taskforce to develop ministerial regulations and guidelines for practice.� Both tools were planned for 11 piloted provinces.4

In the meantime, the following laws were also reviewed and redrafted:� Establishment of the Central Juvenile and Family Court; Criminal Procedure Code Amendment; Prevention and Suppression Measures for Distribution, Production and Sales of Pornography. 5

On 28 November 2007, the National Legislative Assembly passed the Prevention and Suppression of Human Trafficking Act to be consistent with the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, and the Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organized Crime to which Thailand is a signatory.� It defines “trafficking in persons” as follows:�

“Recruitment, buying, selling, disposing of, taking from or sending to any place, detaining or confining, harbouring, or receipts of persons, by means of the threat, use of force, of abduction, of the abuse of power, or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation for oneself or for others, if such offense is committed against a child shall be considered “trafficking in persons” even if this does not involve any of the means set forth above and the consent of the child shall be irrelevant.� Exploitation shall include the exploitation of the prostitution of others, of producing or dissemination of pornography or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, the removal of organs, using children in practices against the Penal Code or similar or severer practices

The new Act, which will take effect within 120 days thereafter, subjects violators to heavy penalties, especially government officials, politicians and office holders.� Under the Act, government officials or employees of state enterprises convicted of offences face twice the punishment that common violators might get, while those responsible for anti-trafficking operations, such as the minister of labour, would suffer triple the penalties if ever convicted.

The Act also includes measures against media outlets that publish the identity or pictures of sex crime victims.� Editors could face up to six months in jail and/or a fine up to 60,000 baht if convicted of identifying victims or using photos of them without permission.

The new Act also prohibits parents to sell their young children in advance to provide sex service in the future.� Such a practice is known in Thai as “tok kheo”.� Parents or any person soliciting for such purpose also face criminal prosecution.

These legislative regimes have implemented the national agenda on human trafficking since 2004.� Urgent policies include the following:

  • Capacity building for relevant personnel to enhance their understanding on the nature of the problem to ensure the efficiency of the officials’ anti-trafficking efforts. 
  • Intelligence exchange among origin, transit and destination countries which can be achieved by the establishment of networks and cooperation.
  • Improvement and amendment of laws relevant to human trafficking to be more responsive to the present situation. Appropriate legislation against human trafficking must be enforced with transparency. There must be proper and sustained training for the police, and relevant personnel should be provided with training on necessary legal frameworks and their applications.
  • Campaign to increase public awareness of the problem and provision of assistance to those at risk of falling victims to traffickers so that they can have alternatives and opportunities to get away from human trafficking.
  • Remedy and rehabilitation to assist victims of trafficking and those afflicted by other social problems.
  • Change of discriminatory attitudes in society that stigmatize victims of human trafficking to facilitate their reintegration.
  • ------------------------------------------------

    Endnotes

    1 According to Section 8 of the Prevention and Suppression of Prostitution Act, if the offence is committed in relation to a child not over 15 years of age, the offender is liable to imprisonment for a term of two to six years and to a fine of 40,000 to 120,000 baht.
    2 Section 9 considers it an offence if a person who procures, seduces or takes away any person for the prostitution of that person, even with her or his consent and irrespective of whether the various acts which constitute an offence are committed within or outside the Kingdom of Thailand. Section 10 calls for an imprisonment for a term of 4 to 20 years and a fine of 80,000 to 400,000 baht for a father, mother or parent of a person not over eighteen years of age, who knows of the commission against the person under his or her parental control of the offence under section 9 and connives in such commission. According to Section 11, any person who is the owner, supervisor or manager of a prostitution business or a prostitution establishment, or the controller of prostitutes in a prostitution establishment is liable to imprisonment for a term of 3 to 15 years and to a fine of 60,000 to 300,000 baht. If the prostitution business or establishment has, for prostitution, a person over fifteen but not over eighteen years of age, the offender is liable to imprisonment for a term of 5 to 15 years and to a fine of 100,000 to 300,000 baht. If the prostitution business or establishment has, for prostitution, a child not over fifteen years of age, the offender is liable to imprisonment for a term of 10 to 20 years and to a fine of 200,000 to 400,000 baht.
    3 “Thailand Country Report, The Progress Report on the Status of Implementation of the EAP Regional Commitment and Action Plan Against CSEC” Post-Yokohama Mid-Term Review of the East Asia and the Pacific Regional Commitment and Action Plan Against Commercial Sexual Exploitation of Children (CSEC), 8-10 November 2004, Bangkok, Thailand.
    4 Ibid.
    5 Ibid.

    Keywords : human trafficking, sexual exploitation, child prostitutes, legislative regimes, Patcharawalai Wongboonsin, Ph.D.
       ǹŴ
    Feb 13, 08   


    

    ศูนย์โลกสัมพันธ์ไทย สถาบันเอเชียศึกษา จุฬาลงกรณ์มหาวิทยาลัย
    ชั้น 7 อาคารประชาธิปก-รำไพพรรณี ถนนพญาไท ปทุมวัน กรุงเทพฯ 10330
    โทรศัพท์ 0-2218-7464, 0-2218-7466 โทรสาร 0-2255-1124

    Thai World Affairs Center, Institute of Asian Studies, Chulalongkorn University
    7th Floor, Prajadhipok-Rambhai Barni Building, Phyathai Road, Bangkok 10330 Thailand
    Tel: +66 (0) 2218-7464, 2218-7466 Fax: +66 (0) 2255-1124

    E-mail: info@thaiworld.org
    Website: http://www.thaiworld.org