The Appropriately Determining Individual Liability: A Study of the Gang Rape Offense

Abstract

         This research studied the spirit of gang rape law, its elements, and criteria for determining ensuing individual liability in the Thai legal system by comparing with the justice system of the United Kingdom, the State of California in the United States, France and Germany. Suitable criteria are suggested for determining ensuing individual liability in the justice system of Thailand. Results showed that the spirit of gang rape statutes is to protect victims from assault by multiple offenders as well as repeated attacks by individual assailants. The term “with participation of persons in the nature of sexual assault” is the condition for objective punishment. Elements of gang rape statues were composed of two aspects: joint commission of rape
as principal participants and raping in turn. Criteria of the Supreme Court of Thailand for determining ensuing individual liability in certain cases was inaccurately extensive interpretation insofar as it contradicted the spirit of gang rape law.
In certain cases, principal participants were extended to apply to the third offender. Such extensions are incorrect according to proportionality of punishment and Control-Over-the Act-Theory. An international comparative legal study revealed that decision guidelines in the Thai legal system were different and most stringent. It can be said that gang rape law has a unique (sui generis) interpretation in Thailand. Therefore, to overrule traditional stare decisis on raping in turn which is in consistent with the spirit of the law, Section 276, paragraph three of the Thailand Penal Code should be amended. In addition, Thai courts should apply principal participant status to third offenders who only have acted closely to produce the damage that victims incur from violation.