Page 62 - bศาลยุติธรรมกับความเป็นธรรมทางเพศ

Research Findings on Gender Bias

1
in Thai Supreme Courtûs Decision

By

Asst. Professor Somchai Preechasinlapakun
Dean of Law Faculty, Chiangmai University

1. Introduction
In Thailand, it is widely believed that the court decisions are straight › forward

exercises of rationality and legal logics free from personal value. Court decisions are neutral,
no gender bias in their decisions. This is conventional belief it is therefore understandable

why Thai lawyers, including academics, have been paying little attention to analyze Thai court
decisions. The role of the court is similar to legal machines.
My study is to raise the question on the mainstream belief by looking into court

decisions in the crime of rape during the past 50 years so as to find how the court define
what consensual or forced sex is, and what factors lead to the reduction or increase

of punishment.
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2. How Thai Court Interprets çConsensual Sexé on the Rape Case.

Although rape is a crime under Thai criminal code, the courtûs reasoning on what
constitute rape is still problematic.
Consent is very important issue in the courtûs consideration in the rape case. In most

cases, male defendant usually claimed that woman agreed to engage in sexual activity not
by force, the plaintiff usually expressed the opposite. Nonetheless, most cases do not have
hard evidence or witness › incidents usually took place in places far away from eye witness

such as at motels, houses, in the jungle etc. Without any witness, it is difficult to prove
whether such sexual incident fall in the category of consensual sex or rape.

The disputes are often çword against wordé. The court usually relies on some specific
reasoning to define what consensual rape is.

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A presentation at the South East Asia Regional Judicial Colloquium on the Role of Judiciary in
Promoting Gender Equality organised by the United Nations Development Fund for Women -
UNIFEM, 25-27 October 2007 in Chiangmai, Thailand

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