Focus on the Victim's Rights and Dignity: New approaches to legislative development in Thailand

A. ORGANIZATIONAL INFORMATION

1. Organizational profile and objectives

The increasing intensity of problems related to Thailand's domestic prostitution and cross-border trafficking led to the realization amongst the Thai Government, government authorities and concerned NGOs that immediate collective action was crucial to ameliorating the situation. Eradicating exploitative commercial sex and trafficking in children and women had become virtually impossible for any one agency to undertake by itself, and the solidification of political commitment to tackle the issue at the highest level was widely viewed as imperative.

This environment of growing concern led to an addition to the National Policy and Plan for Action in 1996 - termed the Prevention and Eradication of the Commercial Sexual Exploitation of Children. Formulated through the work of the two National Committees of the Office of the National Commission on Women's Affairs (ONCWA), it signified a high-level political initiative that had the backing of both Thai civil society and international bodies. The committees themselves (the National Committee on Measures for Trafficking in Women and Children, and the National Committee on Family Development and Combating Against Violence) comprised multisectoral members that included planners, academics, NGOs, activists, representatives from the National Police Bureau (NPB), the Department of Public Welfare (DPW), the Immigration Bureau and representatives of international NGOs and United Nations agencies.

The ONCWA, established by Order of the Prime Minister's Office in 1983, thus became the leading force in the country's initiatives in combating commercial sexual exploitation. As a national coordination agency, the main objective of the ONCWA is to promote and facilitate the work of implementing agencies in line with ministries and NGOs on women-related issues. Its objectives include the advancement of women through the submission of policies and master plans for the promotion of women's activities, roles and status to the Council of Ministers, and the recommendation to the Prime Minister of needs for new legislation or revisions/amendments to existing legislation.

Recently, however, there was an agreement among the concerned agencies that the problem of commercial sexual exploitation in Thailand mostly involved victims who were under age 25; as such, it was recommended that the responsibility for national coordination should shift to the National Youth Bureau (NYB), the highest government agency responsible for youth affairs. The NYB - which formulates programmes for youth, organizes training and research, and serves as a focal point for the coordination, dissemination and publicity of all youth activities - took over this mandate in June, 1999.

B. GENERAL INFORMATION ABOUT MODEL

1. Model profile

National Policy and Plan for Action of the Prevention and Eradication of the Commercial Sexual Exploitation of Children

In 1996, the 1990-2000 National Policy and Plan for Action was revised by the ONCWA to better reflect the mounting problem of commercial sexual exploitation of children. The Plan was altered to include strategies for the prevention and suppression of commercial sexual exploitation, as well as means for the assistance, protection, recovery, and reintegration for child victims. The revised Plan also delineated a working mechanism for coordinating these various activities.

One of the most significant aspects of the amendment to the Plan - known as the National Policy and Plan for Action of the Prevention and Eradication of the Commercial Sexual Exploitation of Children - was its role as a springboard for further action at the national level. The two National Committees of ONCWA immediately demonstrated the solid commitment behind the new Plan by spearheading initiatives to revise, amend and formulate five key laws, which are considered amongst the most advanced in Asia. Moreover, the Plan can also be attributed to the creation of a Memorandum of Understanding, which signified a more intense effort to prevent cross-border trafficking and to better assist trafficking victims. The personal efforts of Dr. Saisuree Chutikul, the Chairperson of the two Committees and a noted educator, were particularly vital to the atmosphere of cooperation that ensued between GOs, NGOs and several international organizations.

2. Problem addressed

The original impetus behind commercial sexual exploitation in Thailand took place during the Viet Nam War in the 1960s, when the massive presence of American soldiers prompted the recruitment of women as sex workers. After the war ended, the commercial sex industry was sustained by the Thai government's intense promotion of the country as a tourist destination, as well as the burgeoning of the Thai nouveaux rich and new middle class, which provided another source of growing demand. This demand was not solely confined to adult women - young girls and boys also were lured or forced into Thailand's commercial sex industry. By the mid-1980s, this particular aspect of commercial exploitation - in essence, the commodification of children - began to receive extensive media coverage.

In response to the growing problem, several key individuals and NGOs began to take decisive action in the late 1980s and early 1990s. In particular, the Ecumenical Coalition on Third World Tourism (ECTWT), the Foundation for Women, the Friends of Women Foundation, the Center for Protection of Children's Rights, and the Foundation for the Better Life of Children, were instrumental in increasing public awareness and bringing the issue to the attention of the Thai Government. In addition, this climate of mounting advocacy gave rise to two new prominent NGOs, End Child Prostitution in Asian Tourism (ECPAT) in 1991 and the Coalition to Fight Against Child Exploitation (FACE) in 1995. Both specifically focused on the rights of child victims and the development of relevant law enforcement procedures and mechanisms within Thailand.

On a broader level, Thai society has undergone many basic changes in regard to human rights and human dignity due to popular demands for political reform since the 1970s. The zenith was the promulgation of the first people's constitution in October 1997, which accorded additional protection for children and women, and the financial crisis of that same year, which impelled many of the newly impoverished to enter the commercial sex industry for income. This "step forward", occurring simultaneously with wide scale economic and social setbacks, underlined the exigency of dealing with the issue of commercial sexual exploitation.

3. Model objectives and activities

Legislative changes

The five key laws aforementioned are noteworthy due to their emphasis on the decriminalization of victims of commercial sexual exploitation, as well as the resulting training of police officers and social workers to ensure legal enforcement. The laws, which include four amendments and one new piece of legislation, are the result of twelve years of hard work and persistence on the part of Thai activists, NGOs, academics, and government officials to convince the national parliament that legal reform is indispensable to confronting the problem.

In 1996, the national parliament passed the Prostitution Prevention and Suppression Act, replacing the Prostitution Suppression Act of 1960. This new Act, the product of collaborative efforts between governmental and non-governmental organizations, eradicated the former Act's focus on criminalizing prostitutes. Previously, prostitutes could be imprisoned for two years, while brothel owners faced only one year, and procurers only three months. The 1996 law reduced the penalties prostitutes face, while procurers, traffickers, pimps and brothel owners can, however, be more severely punished through fines and imprisonment. Further, if the offence causes injury or death, the penalty can be a life sentence or even the death penalty. In addition, parents or guardians who collude with procurers or traffickers in forcing children into prostitution can be punished through fines and imprisonment, and can have their guardianship revoked. The 1996 Act also establishes a Committee for Protection and Vocational Development to assist victims, and creates provisions for NGOs to set up their own shelters and vocational development programmes.

In November 1997, the parliament passed the Measures in Prevention and Suppression of Trafficking in Women and Children Act, a revised version of the 1928 Trafficking in Women and Girls. The new Act extends coverage to boys and girls under 18 years of age and increases penalties for traffickers. The Act instructs law enforcement agencies to take legal action against perpetrators, and stipulates that people who aid exploiters should receive equal punishment. Officials are given the right to search various public places, such as airports and sea ports, in order to prevent sexual exploitation and assist victims, and are also conferred increased authority to detain victims for questioning within prescribed time limits. Also, courts are empowered to take depositions from victims immediately following rescue, even if the people who committed the crimes have yet to be identified. Victims of commercial sexual exploitation may be provided with services such as temporary shelter and vocational training, and can also be assisted in returning to their homes, whether in Thailand or elsewhere.

The third piece of legislation that falls under the Thai model is the Penal Code Amendment Act (No. 14). This Act, passed in 1997, redefines sexual offences to include the procurement or trafficking of boys or girls for the purposes of sexual gratification. All children under 18 are protected under the law, regardless of whether they had given consent or not, with offenders facing fines and imprisonment. The Act imparts Thailand with the authority to prosecute anyone who procures or traffics any adult or child, no matter where the offence is committed and regardless of the victim's nationality. This provides Thailand extraterritorial jurisdiction over cases of rape and other forms of sexual abuse.

A fourth and very significant legislative change is the 1999 Criminal Procedure Amendment Act. Efforts in the formation of this Act involved concerned NGOs, judges, attorneys, police and National Commission for Women's Affairs staff, backed by the support of UNICEF Thailand. Earlier versions of this had led to unnecessary trauma for victims of child abuse, who were coerced into describing the circumstances of abuse to several different authorities during the investigation and trial. Further, victims had to face their abusers in the courtroom and submit to cross-examination, and during the delay prior to the trial, the children were often bribed or threatened to manipulate them into changing their testimony. The procedures under the new law (see Chart 1) allows children to give videotaped statements, to avoid repeated questioning, and to provide evidence to the court via video link with the assistance of a social worker or psychologist. The prosecutor or the victim may also request that the victim or a witness present an early deposition if the offender has not yet been identified, or if it would be difficult for the victim or witness to attend the trial. Following passage of the amendment, several months were required to establish the infrastructure, such as videotaping equipment, and to implement and test the procedures. The amendments came into force throughout the country in September 2000.

The final law relevant to the Thai model is the 1999 Money Laundering Control Act. In many countries, the main target of money laundering laws is drug trafficking; in Thailand, however, the law also aims to prevent prostitution and the trafficking of women and children. Section 3 of the Act details many offences relating to the commercial sex industry, including the operation of brothels, the procurement, seduction, or trafficking of women and children for sexual exploitation, and offences under the Measures in Prevention and Suppression of Trafficking in Women and Children Act.

Memorandum of Understanding (MOU)

In 1999, the National Commission for Women's Affairs completed a Memorandum of Understanding on Procedures for Women and Children as Victims of Trafficking. The Memorandum of Understanding (MOU) was signed by the permanent secretary of the Prime Minister's Office, the director general of the Royal Thai Police, the director general of the Public Welfare Department, the chairperson of the Thai Coordinating Committee on Foreign Children, and a representative of the Global Alliance against Trafficking. The MOU establishes a standard set of procedures (see Chart 2) for dealing with victims and perpetrators of trafficking based on the previously mentioned laws and regulations. There are separate procedures for Thai victims needing reintegration and for non-nationals, as the latter are granted exemption from prosecution under the immigration laws and set aside as witnesses. In due course, public welfare officials cooperate with respective embassies to arrange for their safe repatriation.

In addition to providing a standard set of procedures and facilitating the enforcement of the laws, the MOU signifies both the intention and the covenant of all parties concerned to work together for a common cause. In this manner, the MOU has indeed proved to be a highlight of the Thai model.

The actual creation of the MOU required several years of preparation and consultative work. Following the Mekong Subregional Conference on Trafficking in Women and Children, held in November 1997, a number of NGOs conducted research and presented recommendations to various government agencies, other NGOs, and international organizations. A seminar and training session ensued for law enforcers, such as immigration officers and border police, as well as for Department of Public Welfare social workers and NGO staff. Finally, in 1998, a national committee was set up to recommend appropriate strategies - the MOU constitutes one such strategy.

To date, nine training courses on the MOU have been conducted, with approximately one thousand officials in attendance. The response from those who have attended has been positive, and more courses are planned. Meanwhile, the National Youth Bureau and the Thai network have been working on a MOU between the Government and NGOs, a MOU among NGOs, and a MOU between the Governments of Thailand and Cambodia. Additional bilateral and multilateral MOUs may be constructed in the future in order to extend and enhance the original MOU's success.

C. EVALUATION

1. Responsiveness/relevance

The 1996 National Policy and Plan for Action of the Prevention and Eradication of the Commercial Sexual Exploitation of Children, as well as the MOU and the five legislative developments, are the culmination of the endeavours and demands of NGOs, the media, and the general public. All components of this Thai model were fabricated after extensive consultations with concerned groups, including those involved in implementation. As demonstrated by the 1996 revision, the overall ten-year National Policy and Plan of Action itself is periodically reviewed in order to keep abreast of new conditions and needs.

As aforementioned, the National Commission for Women's Affairs served as the organizing centre of this network, before the mandate was shifted to the National Youth Bureau. The Royal Thai Police, the Office of the Attorney General, the Public Welfare Department, the Immigration Bureau and the National Office for Women's Affairs continued to participate in the effort to combat commercial sexual exploitation of children and youth. In addition, relevant NGOs, international organizations and experts still maintain their involvement, and new actors, both within Thailand and abroad, are added to the training process as needed. It is the continually growing membership of this entire network, with its multi-faceted expertise and faculties, which acts on cases and upholds the best interests of the victims. As such, the network's flexible capabilities may be termed as quite responsive and relevant to the challenge.

2. Efficiency

Soon after the enactment of the Prostitution Prevention and Suppression Act in 1996, the ONCWA commissioned the Coalition to Fight Against Children's Exploitation (FACE) to study the law's enforcement. It was found that among the 88 cases under the study: (a) the various Department of Public Welfare shelter homes adequately cared for the child victims referred to them; (b) in quite a few cases, the police failed to lodge proper charges; and (c) similarly, in some cases the defendants were discharged due to "lack of adequate evidence". This proves that, in terms of effective enforcement of this Act, law enforcers require much more training and awareness instruction.

Following the enactment of the Measures in Prevention and Suppression of Trafficking in Women and Children Act in 1997, and the subsequent signing of the MOU, the Office of the National Commission for Women's Affairs (and later on, the National Youth Bureau) conducted a series of nine training sessions, as mentioned earlier. In preparation for this paper, the NYB conducted an evaluation of this training in four provinces: Srakaew, Kanchanaburi, Songkhla and Chiangmai. It was discovered that most law enforcers are well aware of the existence of the new laws and the MOU, and suitably applied them when incidents occurred. However, there still exists a degree of uncertainty among some officers that the MOU does not enjoy legal status. In response, it was explained that the signing of the MOU by the highest officials of the respective agencies, and their subsequent relevant orders, constitutes adequate authorization for action, which rectified the confusion.

In their totality, the provisions of the new laws and the MOU have facilitated rather effective cooperation among all parties concerned in dealing with cases of commercial sexual exploitation of children and women. These instruments signify a new trend in Thailand to welcome collaborative efforts in the protection of the rights and dignity of victims.

3. Innovativeness

A focus on the welfare of child victims of commercial sexual exploitation rather than on criminalization represents a major shift in Thai official attitudes, although more time and training is necessary before such changes become thoroughly entrenched. In addition, an emphasis on punishing brothel owners, traffickers, pimps, and customers, rather than prostitutes, can also be regarded as an innovative feature of the Thai model. Parents and guardians who collude in commercial sexual exploitation of children and youth are also allotted appropriate punishment. The potential charge of life imprisonment or the death penalty in the case of injury or death evidences the new and heavier penalties prescribed.

The more intimate working relationship between government agencies, NGOs, and international organizations is also new. For instance, the police and NGO workers now collaborate in rescuing victims, with those under 18 years of age automatically sent to Department of Public Welfare shelter homes for rehabilitation and vocational training. As previously earlier, if the victim is a foreigner, the immigration police waive prosecution and entitle the victim to act as a witness before the repatriation process.

4. Sustainability

Both the new Constitution and the legislative developments comprise a permanent framework for dealing with the problem of commercial sexual exploitation of children and women. To add to this realm of legal reform, two new bills, both addressing child pornography, are presently being considered by the national parliament. The first bill aims to control and punish the exhibition and transmission of child pornography in the electronic media or on the internet. The second bill, an amendment to the Penal Code, aims to punish those who photograph children for pornographic purposes, and intends to exact heavier penalties on those who produce and/or distribute child pornographic materials. At least one more bill that deals with the issue (in this case, to protect witnesses) is under consideration.

5. Impact

In a specific sense, there are several practices that have evolved in the past few years which may be cited as concrete examples of the successful impact of the Thai model. In one such example, as a result of the MOU guidelines and the legal developments, it is now regular practice in all public health offices throughout the country to require a physical examination at least once per month of all women working in the sex industry. This has assisted in reducing sexually transmitted diseases and promotes overall better health. In another example, the Crime Suppression Division of the Royal Thai Police has created their own rescue operations unit, with the Public Welfare Department also creating a special division to help participate in these operations, as well as to take care of victims referred to them. Similar counterpart units in all provincial public welfare offices have also been established.

Generally speaking, the most important impact of the Thai model is the actual disappearance of the open and blatant presence of children under 18 years of age in sexual entertainment venues. At most, these practices have gone underground; however, their numbers have clearly been reduced. This is just one of the indications that the essential infrastructure to combat the problem is now effectively in place. From this point forward, a more profound impact will depend on the political will of the Thai government, the ethical convictions of NGOs and IOs, and the technical and professional competence of all personnel concerned.

6. Conclusion

Historically, the entire movement that exposed the problem of commercial sexual exploitation of children started in Thailand, and Thailand remains one of the countries most affected by it. The approach that evolved over the past decade began with the realization that the commercial sexual exploitation of children and youth constitutes a grave threat to the core fabric of our social values and ethics. In order to better assist children and youth that are either enticed or lured into the industry, the approach adopted the view that these are victims, not criminals, who are in dire need of protection.

The new perspective also incorporated the expertise and recommendations of a variety of professionals, not only in court cases, when social workers and child psychologists may be called in, but also in the formulation of policy and action strategy, when NGOs and international organizations can provide valuable input. The fact that these international bodies and civil society organizations were not only allowed to participate, but actively sought out by government agencies, is something markedly different from just a decade ago.

In addition, the new approach deems systematic planning as common practice, with seminars, consultations, and proper documentation as basic procedures that are fundamental to policy formulation and implementation. Follow-up, monitoring and evaluation ensure that personnel at all levels of action are competent and responsive to the needs of victims, and that practical feedback is incorporated into present and future initiatives.

In sum, we may share from our experience that: (a) clear articulation and adequate documentation of the problem can move decisive action; (b) for such action to be truly effective, the expertise and collective efforts from a wide variety of relevant actors are essential; and (c) these initiatives must uphold social justice and human dignity, which can only be realized when the rights of young victims of commercial sexual exploitation are genuinely protected.

Source:
Text extracted from the report: ASIA-PACIFIC ANSWERS: Good practices in combating commercial sexual exploitation of children and youth. UNESCAP 2001. Download pdf-version of full report (1,168 kb)