LAW AND SOCIETY

By William J. Klausner

Under present Thai law, abortion is illegal with only very limited exceptions, though its practice is widespread. Both the pregnant woman and the doctor who performs the abortion are criminally liable. While efforts to liberalize the abortion laws have failed in recent years, there continues to be outspoken advocacy for allowing abortions where either economic hardship or social pressures and difficulties would result from the birth of the child, where a woman is pregnant due to the failure of medically prescribed contraceptive devices, and where it is determined the child would be home with HIV/AIDS or gross mental or physical detects.

Another area where law and custom dramatically diverge is in the well-known penchant of Thais for gambling in all its myriad forms. In addition to the underground lottery noted above, illegal gambling casinos and gambling in soccer, boxing and other sports are multibillion-dollar enterprises. Recent studies under the aegis of the Political Economy Research Center, Chulalongkorn University, estimated that casinos, underground lotteries and soccer gambling accounted for as much as Baht 900 billion in circulation or almost 20% of the GNP for 1995. The research indicated that these illegal businesses thrived with the support and protection of policemen, politicians and buiness elites. Other elements of this illegal underground black economy include narcotics trafficking; human trafficking, including prostitutes and labor; illicit arms trade; and oil smuggling.

To summarize, where the positive law and custom diverge, one may expect, in both rural and urban areas, not only legal disobedience but a lack of respect for the law as well. In addition, enforcement will, more often than not, be viewed as arbitrary and, therefore, resented. Confrontation between government officialdom and the public results. Corruption will inevitably be the by-product of selective, irregular enforcement. In urban areas, increased criminal activity, in the form of protection gangs, may be expected to flourish in such an environment. To avoid these socially and politically disruptive and unproductive consequences, efforts should be made to bring the law and custom into conformity. There are a variety of means to achieve this end, and there will certainly be disagreements depending on one's moral, political, and cultural predilections and perspectives. However, whatever path is taken, therein lies the intellectual challenge. The state's preference may well be to focus on efforts to change both rural and urban behavior to conform to the law. On the other hand, another obvious means to achieve this objective is to repeal, amend, revise, or promulgate laws so that the legal corpus conforms to customary behavior and contemporary economic, social and political realities. As Galsworthy so aptly noted, "Public opinion is always in advance of law." As attitudes and values change, sooner or later laws will change: "The law may sleep, but it cannot die" (dormiant aliquando leges nunquam moriuntur). Gender discrimination is a case in point. It is also possible for the courts to interpret existing laws to take into account changing social, economic and political conditions as well as changing attitudes. Thus, in the instance of abortion, the threat to the women's health might possibly be interpreted to include a threat to her mental as well as physical health. In the case of divorce, it is conceivable the court could subsume adultery (as committed by the husband) under other recognized grounds for divorce, i.e., "if a spouse is guilty of misconduct, regardless of whether such misconduct is a criminal offense, which causes shame, hatred or damage to the other party;" or "if a spouse has caused bodily or mental harm to the other party." Despite the legal maxim "Custom is the best interpreter of the laws" (optima est legis interpres consuetudo), the Thai judiciary is basically conservative and generally follows a "strict constructionist" -philosophy. Thus, new legislation would probably precede any such reinterpretation of existing laws.

The discrepancy between the law and ministerial regulations on the books and behavior and practice on the ground is clearly evident in other areas such as gender roles and identity, religion, politics, labor relations and illegal migrant labor, and technology.

The intrusion of individualism and egalitarianism into the Thai social fabric has been evidenced in the more open expression of one's sexual freedom and gender identity and role play. While a double sexual standard still largely applies, there is no doubt that premarital female sexual activity has increased as has the pattern of living together without official marriage registration. The rate of divorce has measurably increased as women today are less prepared to endure subservience, abuse and infidelity. Women's rights groups and women parliamentarians have become increasingly vocal in their demands for the removal of vestiges of male chuvinism and patriarchy in the legal codes. As noted in a previous chapter, attitudes and values are changing, but the law has been slow to follow suit. The gap between law and increasingly accepted behavior and practice, as well as expectations, persists.

Individualism has also manifested itself in the more overt expression of alternative sexual identity and behavior. Mirroring the more open political expression and the dramatic expansion of civil society during the past decade and a half, there has been increasing evidence of sexual freedom in homosexual as well as heterosexual behavior. In the past homosexuality was largely identified with the katoey, the feminine-identified male homosexual. However, within the last decade, there has been the emergence of a masculine-identified male homosexual subculture and commercial gay scene. In the late seventies there were only ten gay entertainment venues, and all were bars located in the Patpong area in Bangkok. A little more than a decade later, there were over one hundred gay bars, saunas, restaurants and discos throughout the country. Two luxurious gay saunas were opened to the capital in 1987 and 1994 respectively, and they rival Bangkok's famed heterosexually oriented massage parlors in both their ostentation and the number of clients serviced nightly. Before 1981 there were no regular Thai language magazines published by and for the gay male homosexual community. By 1994 there were fourteen monthly Thai language gay magazines, and by the middle of 1995 another nine had already appeared on the newsstands.⁽¹⁰⁾

While it is true that there are no specific legal sanctions against consensual homosexual behavior, there are obvious lacunae in the Thai legal codes in terms of the rights and benefits of homosexuals. For example, the definition of rape is confined to sexual intercourse by force with a woman who is not one's wife. The legal definition of prostitution, while originally limited to women, was changed to include male prostitution in the 1960 Act for the Abatement of Prostitution. In amendments to the 1960 Act, presently being considered by the Thai Parliament, acts of prostitution with a member of the same sex are also to be specifically prohibited. Sex change operations are not recognized under law as affecting gender identity. Thai law does not recognize marital rights, privileges or obligations for same sex long-term relationships. Insurance, inheritance tax, pension, health, and family leave benefits are denied for those in such homosexual relationships. Recent judicial decisions in a few U.S. local jurisdictions, Europe and Australia, which are based on acceptance of same sex long-term relationships, have validated such benefits as well as approved adoption of the biological child of one's lesbian partner, accepted the "battered wife syndrome" as a homosexual man's defense against a first degree murder charge, approved hospital visitation rights for a same sex partner usually reserved for spouse and close relatives, obligated a former lover to provide child support to children born through jointly agreed upon artificial insemination, etc. Same sex marriages have been legally validated in Hawaii in a recent lower court decision now presently under appeal. In a few cities in the U.S., domestic partner legislation provides health insurance and bereavement benefits for city employees. Interestingly enough, the private sector in the U.S. has often taken a more liberal position on this issue, e.g., universities and corporations, have, in selected instances, provided rights and privileges to same sex partners similar to those accorded in heterosexual marital relationships.

As yet, there has not been an organized campaign to reform the law to accommodate to the reality of this growing homosexual subculture in Thailand that feels increasingly comfortable with its alternative sexual identity and way of life, however much this may deviate from traditional cultural norms. Nevertheless, at some time in the not too distant future, pressure to bring the law into conformity with new attitudes, perceptions and behavior relating to sexual identity, freedom and expression may be expected. Whether such pressure for reform concerns women's rights or homosexual rights, opposition will certainly surface. One must be prepared for the resulting social and political unrest. This tension will persist until correspondence between the law and changing patterns of behavior is achieved and the law enforced.

Part 4

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(10) See Peter Jackson Dear Uncle Ho (Bangkok: Bua Luang Press, 1995) for a perceptive analysis in exhaustive detail of the Thai homosexual community.