Black Magic, Sex Rituals and the Law: A Case Study of Sexual Assault by Religious Fraud in Thailand

37(1) UCLA Pacific Basin Law Journal 25-57 (2020)

34 Pages Posted: 14 Aug 2020

See all articles by Jianlin Chen

Jianlin Chen

University of Melbourne - Melbourne Law School

Phapit Triratpan

affiliation not provided to SSRN

Date Written: May 1, 2020

Abstract

This Article critically examines the criminalization of religious fraudulent sex as sexual assault (i.e., rape and indecent acts) in Thailand and makes descriptive and normative contributions to the fields of comparative criminal law and constitutional law. With respect to criminal law, we find that Thai courts utilize a creative doctrinal maneuver (i.e., a victim’s naivety is a form of ‘inability to resist’) to convict alleged fraudsters with statutory provisions that do not readily criminalize fraudulent sex. We argue that while the doctrinal maneuver does desirably extend the otherwise limited scope of Thai sexual offense provisions, the emphasis on the cognitive deficiencies of the defrauded victim reflects a paternalistic victim-blaming that is problematic. With respect to constitutional law, we find that Thai courts are both comfortable in directly adjudicating religious claims, and intrinsically skeptical of any supernatural/religious claims involving sex as part of a ritual. We argue that while the assessment method of the Thai courts does not accord with principles of religious liberty espoused in the US and Europe, it is an inevitable outcome of the prevailing constitutional ordering and societal understanding of religious freedom in Thailand.

Keywords: Rape by Deception, Fraudulent Sex, Religious Fraud, Religious Freedom, Sexual Assault, Victim Blaming, Thai Constitutional Law

Suggested Citation

Chen, Jianlin and Triratpan, Phapit, Black Magic, Sex Rituals and the Law: A Case Study of Sexual Assault by Religious Fraud in Thailand (May 1, 2020). 37(1) UCLA Pacific Basin Law Journal 25-57 (2020), Available at SSRN: https://ssrn.com/abstract=3651959

Jianlin Chen (Contact Author)

University of Melbourne - Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Phapit Triratpan

affiliation not provided to SSRN

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