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

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 or 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 United States and Europe, it is an inevitable outcome of the prevailing constitutional ordering and societal understanding of religious freedom in Thailand.