3. The term “prostitution establishment” should be changed in Section 8. As the section reads now, a client must have sex with a child in a prostitution establishment to be liable for punishment. “Prostitution establishment” is defined as “a place established for prostitution or in which the prostitution is allowed, and shall include a place used for soliciting or procuring another person for prostitution.”16 The term does not cover sex with a child in a hotel room or in one’s private home. The Act should either specify that prostitution establishment includes hotel rooms and private residences17 or leave out the term “prostitution establishment” altogether.18
4. The phrase “in order to gratify his or her sexual desire or that of another person” in Section 8 is unnecessary and allows ambiguity for what should be a clear crime. “Sexual intercourse” should also be expanded to explicitly include other acts that might not be considered strict sexual intercourse, but are still sexually exploitative, such as oral sex.19
B. Labour Protection Act (1998)
The Labour Protection Act (“Labour Act”) forms the basis for comprehensive labor legislation in Thailand.
Chapter One, Section Fifteen provides for the equal treatment of male and female employees,20 and section sixteen states that an employer, supervisor, or inspector is “not allowed to sexually harass an employee who is a female or a child.”21
Chapter Three give restrictions to female workers, like a prohibition on working in underground mines, on scaffolds over ten meters high, or with explosives.22 The Labour Act also guarantees pregnant women 90 days of maternity leave,23 up to 45 days of which are paid by the employer and the rest paid by a national social security fund that was established in 1990.24 The Act also allows a woman to request for a change of duties directly before or after childbirth25 and protects women from being dismissed because of pregnancy.26
In contrast to these protections for pregnant Thai women, the Labor Minister Padermchai Sasomsap announced in June 2012 that a new regulation will be drafted that requires pregnant migrant women who are three to four months pregnant to return to their home countries for delivery.27 While the law’s intent to protect children from sex and labor exploitation, human rights organizations have argued that the policy discriminates against female workers since they will be forced to stop their jobs, pay fees to travel home, and face job insecurity after they deliver children. Human rights organizations also argue that the policy will separate families and encourage unsafe abortion.28
Chapter Four of the Labour Act specifically covers child labor. The Labour Act prohibits any child under the age of fifteen from working29 and provides for restrictions on child employees aged fifteen to seventeen. The employer is to report the child’s employment within fifteen days of the start of work, report any changes in conditions of employment, and finally report the termination of employment to the Labour Inspection Officer.30 The Labour Act also proscribes at least one hour of rest after every four hours of work,31 and does not allow a child to work overtime or on holidays.32 It also prohibits the employer from employing the child from the hours of 10pm until 4pm so that the child can attend school.33 Exceptions are made for child performers in movies, plays, or other exhibits.34 A child is also prohibited from certain types of hazardous work, such as metal smelting or casting; work with dangerous chemicals, microorganisms which could contain viruses or bacteria, poisonous materials, or explosives; heavy construction machinery; work done underground, under water, in a cave, in a tunnel, or in a mountain shaft.35
While the Labour Act does not explicitly prohibit sex industry work for children, it names several places where a child is prohibited from working: an abbatoir (slaughterhouse), a casino, a dance hall, and any place selling food or alcohol which also has hostesses “to serve customers or with places for resting or sleeping or with massage services for customers.”36 The Labour Act also demands that a child himself, and not any other person, receive his wages.37 The last section of the Labour Act allow for a child to take up to thirty days of paid leave to attend any meetings, seminars, or training that would further his education.38
1. The Labour Act should specifically prohibit children from working in any sex-related industry in Section 49 along with the other hazardous work that is prohibited from children. A child cannot legally work as a sex worker because the age of consent is over 18, but the Labour Act does not explicitly prohibit sex work for children, exemplifying a gap in Thai law. Additionally, while Section 50(4) is a good attempt at banning children from working in massage parlors, brothels, karaoke bars, go-go bars, or any other type of entertainment which offers sexual services to clients, the language is vague. The vague language may prohibit children from working legitimate jobs such as working at a hotel that serves food and drink yet is not involved in the sex industry.
2. The Thai Government should be commended for the final Section 52 regarding a child’s ability to take paid leave to attend any meetings, seminars, or training “in the interests of developing and promoting the quality of life and the performance of work by children.”39
3. When the Act is next revised, the government should:
(i) In Section 49, include a specific prohibition against children working in the sex-industry;
(ii) In Section 50, change the language of 50(4) from “a place which sells and provides food, alcohol, tea or other beverages, with hostesses to serve customers or with places for resting or sleeping or with massage services for customers” to “any place which offers sexual services of any kind, explicitly or implicitly, including but not limited to go-go bars, karaoke bars, brothels, massage parlors, and any other kind of entertainment establishment which offers sexual services to paying customers.”
C. Criminal Procedure Code (Amended 1999)
The Criminal Procedure Code Amendment Act (No. 20), passed in 1999, provided special protections for child witnesses.40Notably, these protections only apply to children
fifteen and under, even though Thai law usually has specific provisions for any child under eighteen in addition to another subset of provisions for any child under sixteen or fifteen.41
Section 133 provides that if a child fifteen and under gives a statement as a witness, the child’s statement is to be taken in a room specially designated for the child, without any other adults present besides the inquiry official and a social worker, psychologist, or another person of the child’s request. The prosecutor is also allowed to be participate “if the prosecutor believes that it is appropriate.” The witness statement is recorded with video and audio equipment so it can be used as evidence in the courtroom proceeding.42
Section 172 provides that if a child fifteen and under serves as a witness during trial, the judge, at his discretion, can arrange for the child to sit in another room separate from the trial room. The judge and the opposing counsel may examine the child through a psychologist or social worker via televised video.43
1. The special protections for child witnesses should be made available to children sixteen to eighteen. The Criminal Procedure Code should include a provision reading, “At the judge’s discretion, these protections for witness statement and trial testimony … may be extended to any child over the age of fifteen but not over the age of eighteen.”
2. Section 133 reads, “if the prosecutor believes that it is appropriate, the prosecutor may participate in the process of statement taking of such child.” However, this decision should not be made by the prosecutor, but by the judge or another unbiased party.
16 Prevention and Suppression of Prostitution Act, § 4.
17 The definition would read, “a place established for prostitution or in which prostitution is allowed, including hotel rooms and private homes, and shall include a place used for soliciting or procuring another person for prostitution.”
18 The definition would then read, “Any person who . . . has sexual intercourse or acts otherwise against a person over fifteen but not over eighteen years of age, with or without his or her consent, shall be liable . . .”.
19 Using the recommendations from #3 and #4, Section 8 would read: “Any person who has sexual intercourse or commits any other sexual acts, such as oral sex, with a person over fifteen but not over eighteen years of age, with or without his or her consent, shall be liable to imprisonment for a term of two to six years and to a fine of forty thousand to one hundred twenty thousand Baht.” Note that the Thai Penal Code’s definition of sexual intercourse, § 276, is broader than the one in the Prevention and Suppression of Prostitution Act.
20 See Labour Protection Act, B.E. 2541 (1998), Ch. 1 Sec. 15.
27 See Shadow Report on Eliminating Racial Discrimination: Thailand, CERD Committee meeting, Geneva, Switzerland (Aug. 9-10, 2012), “Reproductive Health,” § 138.
28 Id. Human Rights Watch submitted a formal complaint to the National Human Rights commission of Thailand, available at http://www.hrw.org/news/2012/07/17/letter-prof-amara-pongsapich-re-labor-minister-s-plan-deport-pregnant-migrant-worker
29 Labour Protection Act, 4. § 44.
40 See Criminal Procedure Code Amendment Act (No. 20), B.E. 2542 (1999), § § 133 bis., 172 ter.
41 See, e.g. Prevention and Suppression of Prostitution Act, § 8; Labor Protection Act, Ch. 4, § § 44,45.
42 Criminal Procedure Code, § 133.