When is rape not considered rape?
I had always thought – naively as it turns out – that rape is when a person forces another person, either physically or by using threats, to have sex and/or when there’s an absence of a clear ‘yes’.
According to the laws in some of Southeast Asia’s fast-developing nations, rape within a marriage isn’t rape. Or if you go by some of the decisions handed down by the courts, it’s not rape if there isn’t a physical struggle or the perpetrator is in his 60s.
Politicians and law enforcement officials raise doubts that a rape has occurred if the victim and the perpetrator know each other or if the female victim is behaving in an ‘unladylike’ way, for example getting drunk, staying out late or being overly friendly with members of the opposite sex.
I came across these laws, judgements and comments when I was researching a story on how difficult it is for female rape victims to get access to justice in Thailand.
I found rape-related laws that are discriminatory and weakly enforced and archaic societal attitudes about women, not just in Thailand but in other middle-income countries such as Indonesia and the Philippines. What I didn’t find was a dedicated shelter for rape victims of all ages in Bangkok, a city of some 9 million people.
Thailand reformed its criminal code in 2007 and recognised marital rape – rape within marriage – as a crime and acknowledged that rape could occur to all sexes.
Yet it does not consider some types of rape to be serious offences that harm society in general. This allows the perpetrators to get away with rape by paying the victims some money – sometimes as little as $670.
Forget about the violence, humiliation, hurt and potential lifelong trauma the victim might suffer. The case is over once the man pays up.
Maybe he’ll do it again to some other women but as long as he didn’t use a weapon and it doesn’t result in grievous bodily harm or death, this kind of rape is a lesser offence.
Devoutly Buddhist Thailand isn’t alone in taking such a stance.
In Indonesia, the world’s largest Muslim country, the criminal code does not apply to rape within a marriage and sexual assault is defined as involving force or threat of force. Settlement is common.
In Philippines, a largely Catholic country, marital rape is considered a criminal offence but there’s provision for a wife to forgive her husband. Such provisions can perpetuate the assumption that some types of sexual assault are less serious than others, according to a legal expert I spoke to.
MEN AND THE MEDIA BEHAVING BADLY
The brutal gang rape of the Delhi student in December prompted media outlets and pundits around the world to talk about how bad women had it in India. But all is not well elsewhere.
In January, Indonesian high court judge Daming Sunusi, a Supreme Court hopeful, said both victims and rapists “might have enjoyed their intercourse together” so the death penalty shouldn’t apply.
In 2010, CEDAW, the United Nations’ Convention on the Elimination of All Forms of Discrimination against Women, found the Philippines in violation of the convention in a rape trial. The judge found an employer not guilty of raping an employee, citing reasons such as a man in his sixties may be incapable of rape.
Last year, a senior Thai police officer said a foreign tourist may not have been raped because she went to dinner with the accused.
In February, a news website published the identification card of a Scottish woman who said she was gang-raped in Thailand. Stories questioning the woman’s claim with repeated references to how drunk she was appeared before a man confessed. He then claimed it was consensual because she didn’t resist.
“How is a man trying to force himself on an insensible woman an act of “sex,” not “rape”?” said Kaewmala, Thai social commentator and writer.
A similar question was asked in America last week over the case of two high-school footballers in Steubenville, Ohio, who were accused of raping a 16-year-old who was in a drunken stupor.
The defence’s argument that it was “consensual” because she didn’t say ‘no’ irked two feminists so much they wrote about campaigning to change the perception of sexual consent from “‘no’ means no” to “only ‘yes’ means yes.”
The accused were found guilty but a further furore erupted when media such as CNNreferred to the convicted rapists as men with “such promising futures, star football players, very good students” whose lives were now ruined.
PHOTO: Thousands of students and faculty members dance to the theme song of the One Billion Rising campaign in the quadrangle of the St. Scholastica college in Manila February 14, 2013. One Billion Rising is a global campaign to call for an end to violence against women and girls, according to its organisers. REUTERS/Romeo Ranoco