Thailand Law Journal 2014 Spring Issue 1 Volume 17

The Thai Government's Response to Human Trafficking:
Areas of Strength and Suggestions for Improvement (Part1)

By Cristina Liebolt

Introduction

In border areas of Thailand, trafficking is woven into the region’s fabric, and many play a part without consciously recognizing the harm they are causing, from parents to brokers to cab drivers to immigration officers to beauty salon owners to policemen. Part I of this paper, published in December 2014, examined and offered recommendations for the government structures Thailand has created in recent years to combat trafficking.  Parts II and III of this paper will analyze Thailand’s laws and policies relating to trafficking legislation and highlight two recent case spotlights.  Parts II and III will also give recommendations for improvement to both governmental agencies and legislation.

A note on terminology

This paper uses terms as they are used by the Association of Southeast Asian Nations (ASEAN) member states, which currently includes Brunei Darussalam, Cambodia, Indonesia, Laos PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Viet Nam.¹

All country names are those officially used by the ASEAN.  For example, Myanmar is used instead of Burma, which is still used by some pro-democracy researchers, to recognize  the country’s official name. Likewise Viet Nam is so spelled instead of Vietnam to conform to the spelling used in UN and ASEAN documents.

The term “victim” is used instead of the more forward-looking “survivor” in keeping with how the Thai government and the rest of the ASEAN community refers to people who have been trafficked.

The term “prostitute” is used instead of the more progressive term “sex worker” to conform with Thai laws, like the Prevention and Suppression of Prostitution Act, which uses the term prostitute. The question of whether the adult sex industry is necessarily exploitative is outside the scope of this paper, but this paper assumes that the sex industry is exploitative for children.

“Children” used throughout this paper means anyone under the age of 18, unless specified otherwise, in conformity with the Convention on the Right of the Child (CRC).

II. LAWS AND POLICIES RELEVANT TO ANTI-TRAFFICKING

Thailand’s laws concerning human trafficking has progressed dramatically over the past two decades. Thailand’s 1996 Prevention and Suppression of Prostitution Act replaced Thailand’s former 1960 Prevention and Suppression of Prostitution Act and fined prostitutes less harshly. Thailand passed the Labour Protection Act in 1998, which provided for equal treatment of male and female employees. In 2008, Thailand passed the Anti-TIP Act, its founding legislation criminalizing human trafficking and providing for trafficking victims.  Following the Anti-TIP Act, Thailand published its National Policy Strategies and Measures to Prevent and Suppress TIP, intended to cover years 2011-2016.

Specific to children, Thailand amended its Criminal Procedure Code in 1999 and passed the Child Protection Act in 2003 to include provisions to show more leniency and compassion for children. Also in 2003 Thailand drafted the Witness Protection Act to provide for the protection of all witnesses who needed it.

In addition to its own country’s laws, Thailand has entered into several memorandum of understandings (MOUs) with its neighboring countries in the Greater Mekong Sub-Region (GMS): Laos, Myanmar, Viet Nam, Cambodia, and China. Each MOU creates a task force in each country to work together to suppress trafficking between the countries. In addition to these country-specific MOUs, Thailand’s law enforcement agencies have recently begun to sign agency specific MOUs with law enforcement agencies in the bordering countries.

A. Prevention and Suppression of Prostitution Act (1996)

The Prevention and Suppression of Prostitution Act (“the Act”)², signed in 1996, replaced the Suppression of Prostitution Act (1960)³ which made prostitution a criminal offense punishable with imprisonment and/or a fine. The Act continues to classify prostitution as illegal, but decreases the penalties for a prostitute and penalizes those supervising prostitutes (brothel owners and pimps, not clients) a fine of up to one thousand baht.⁴ A prostitute can be charged with a fine not exceeding one thousand baht or imprisonment for a term not exceeding one month or both.⁵ The Act specifically mentions that if the person commits prostitution “on account of compulsion or under an influence which cannot be resisted or avoided,” then the person is not guilty.⁶

The Act also criminalizes traffickers who traffic someone for the purpose of prostitution, whether or not the person has consented and irrespective of whether the act is committed inside or outside of Thailand.⁷ The Act also sets more severe penalties if the offender or the accomplice is an administrative official, a police officer, or an official for the Primary Admittance Centers or the Protection and Occupational Development Centers.⁸

The Act penalizes any parent who knowingly commits his or her child into prostitution with an imprisonment of four to twenty years and a fine of eighty thousand to four thousand baht.¹⁰ The public prosecutor can apply to the court for the child to be taken away from the parent or guardian.¹¹

Finally, if the offender under Section 5 (prostitute), Section 6 (prostitute or those “associated with” prostitutes, not including the client)¹² or Section 7 (advertiser of prostitution) is 18 and under and is not the subject of any other criminal proceedings, the Department of Public Welfare may admit the person into the Primary Admittance Center in his or her jurisdiction instead of punishment.¹³ The Primary Admittance Center then assesses the child’s personality, education level, training or work background, motivation for committing the offense, and aptitude level, and commits the child to the appropriate Protection and Occupational Development Center for up to two years.¹⁴

Recommendations

1. The Prostitution Act should use clearer language for Sections 5 and 6. It is not clear whether Section 5 and Section 6 are meant to target clients of prostitutes, prostitutes themselves, or both. Each section has a different punishment, so there is a substantive difference between the two sections. Suggested language:

Section 5: “Any person who gives sexual services of any kind to another person in exchange for money shall be liable for a fine not exceeding one thousand Baht.”

Section 6: “Any person who [goes to an establishment offering sexual services and] pays another person for sexual services of any kind shall be liable to imprisonment for a term not exceeding one month or to a fine not exceeding one thousand Baht or both.”

In the suggested language above, Section 5 clearly targets prostitutes and only suggests a fine as punishment, while Section 6 clearly targets clients of prostitutes and suggests both a fine and imprisonment sentence. Note that the language for Section 6 targets a client who pays for sex in any private or public place. If the Thai government wants to target only a client who pays for sex in a public establishments, the government could use the bracketed phrase.

2. The punishment for having sex with a child fifteen years of age or younger should be increased. Punishment for having sex with a child from sixteen to eighteen years of age should also be increased to the current fine and sentence for having sex with a child fifteen and under. While older teenagers may look like they are adults, the client should proceed with caution when sleeping with younger-looking girls or boys and be punished more severely for failing to ascertain a client’s true age. If sentences and fines are increased, and some clients are convicted, the Thai government will have a stronger stance against sex with minors. While this act targets prostitution specifically and not trafficking in persons generally, many persons under eighteen who serve in prostitution are also trafficked persons.¹⁵