3.1. Thinking jurisprudentially with issaraphap

The term issaraphap derives from the name of the Hindu god, Siva or, in Thai, Isuan, and generally refers to an intrinsically powerful individual whose power radiates to govern others (Aphornsuvan, Reference Aphornsuvan2014, p. 90).Footnote ¹⁶ It is a politico-legal languageFootnote ¹⁷ used to describe a governing relation between two or more unequal entities.Footnote ¹⁸ Issaraphap, it is important to note, is not a systematic legal regime, a well-articulated political theory, nor a perspicuous term. Yet, the expression appears to be versatile and was applied in diverse contexts. Hence, it has become a conceptual term that scholars studying the political operation of the Siamese state use to think with.Footnote ¹⁹ In the area of family disputes, the mention of issaraphap could be found in the Law of Husbands and Wives in the Three Seals Law, compiled in 1805.Footnote ²⁰ A woman was usually said to be “under the issaraphap of (name of her husband or father)” or it is said “that (name of her husband or father) has issaraphap over (name of the woman).” In this context, the issaraphap regime could be understood as a system of legal claims, expressing the unequal relationships between men and women in Siamese families as relations between a father and a daughter, as well as a husband and a wife.

In her seminal work, Tamara Loos (Reference Loos1998) rightly observes that issaraphap did not subjugate women to men by allowing men to own them as their property, but it designated their relationships as unequal. Issaraphap was not something that could be owned as inalienable private property but a legal claim that could be made by some groups of people in Siamese society because of their status (Loos, Reference Loos1998, pp. 41–2). For superiors such as men, issaraphap was expressed positively as a capacity to govern someone else. Correspondingly, women were always under the issaraphap claim of someone else at a specific time and place, and lacked the capacity to make issaraphap-based claims. As a legal claim rather than a system of subjugation, issaraphap could be legally contested, transferred, and lapsed when certain conditions were met. For instance, the Three Seals Law stated that a daughter is automatically under the issaraphap of her father and, after getting married and gaining a new status as a wife, issaraphap would be transferred from her father to her husband (Sakonsatarnpitak, 1925, p. 35). When a woman divorced her husband, or was abandoned, she had to follow a set of rules and customs before her issaraphap could be transferred to her new spouse (Sakonsatarnpitak, 1925). In sum, issaraphap was a legal claim exercised over another person. The claim also indicated an unequal relationship between the two individuals. This relationship was alterable rather than fixed as a timeless proprietary ownership.

Additionally, while the issaraphap claim ascribed a relation between two individuals as hierarchical and unequal, it also assigned social duties to both parties in the relation. By placing women under issaraphap, the regime also placed them under the care and duties of the male head of household, who had to ensure the women’s well-being and provide for their subsistence. When the male head of household could no longer provide for the women under his issaraphap, many passages in the Three Seals Law suggested that the issaraphap between them came to an end. For instance, when a husband and wife were separated because of war, the Three Seals Law implied that the husband’s issaraphap over the wife disappeared (Sakonsatarnpitak, 1925, p. 12). If a husband abandoned a wife for a specific period of time, the Three Seals Law also stated that the matrimony would lapse, and the wife could find a new husband or return to her parents’ house (Sakonsatarnpitak, 1925, pp. 18–21).Footnote ²¹ These fragments from the Three Seals Law imply that the legal and social responsibilities in Siamese communities did not derive from individual autonomy or the concept of an individual in any sense, but rather the issaraphap relations. More importantly, the duties bestowed by the issaraphap were not mere legal obligations; they were commands of the communities, deeply entwined with lives, leaving almost no boundary between society, individual experiences, and law. To be recognized as a husband under the regime, to make an issaraphap claim over a wife, required the actual performance of the duties related to the role of a husband.

As the regime that encroached on life by dictating the relations and duties that each member of the community owed to one another, the issaraphap regime was neither utterly strict nor completely lax. It was flexible enough to accompany the ebb and flow of life, while retaining the rigidity of the social hierarchy in the communities. It did so by generating, transferring, maintaining, and fixing breaches in interpersonal relations. Through the flexible assignment of relationships, the issaraphap regime always also ensured that individuals occupied various tiers within the fixed hierarchy and continued to uphold their positions within the hierarchy by performing their duties (see Errington, Reference Errington, Chua, Cook, Long and Wilson2012). It maintained a fixed social hierarchy through the loose arrangement of interpersonal relations. The interconnection between the ever-changing interpersonal relations and the permanent hierarchy complicates the understanding of genders in Siam. The issaraphap regime might first appear as a gendered hierarchy that always places women under the issaraphap of their male heads of household, usually fathers and husbands. However, other social attributes apart from gender could also determine the social hierarchy and the unequal issaraphap relations.

For instance, there was a plethora of cases where the issaraphap over some palace ladies was exercised by their female patrons rather than their male head of household. Some noble women also assume issaraphap over their daughters after their husband’s death.Footnote ²² There was also a case in which a court lady escaped into the British legation, claiming British protection or issaraphap, over her against the issaraphap of her Siamese overlord.Footnote ²³ These cases suggest that the ability to claim issaraphap over someone was determined not solely by gender but by the intersection of various social factors, such as gender, social status, and others. Men generally held a higher social rank than women, but noblewomen ranked higher in the social hierarchy than common men (Loos, Reference Loos1998, p. 60). A male white foreigner was also placed above some Siamese noblemen and women. Issaraphap relations, therefore, were determined by various social attributes. The interplay of different social statuses and contexts that determined issaraphap relations allowed the regime to maintain its flexibility while preserving the unchangeable hierarchy.

In summary, the politico-legal language of issaraphap can be jurisprudentially sketched as the intertwined convergence of law and life. Issaraphap also operated as a legal claim to establish an unequal, and usually gendered, interpersonal relation between two individuals. This relation was always unequal because it was a legal expression of an unchangeable social hierarchy. Yet, the relation, not divisible into two autonomous individuals who are bound by a legal tie, became the fundamental legal wellspring. From that wellspring, not only did legal and social duties flow, but also prescriptive rules for the issaraphap relation were generated. Once the duties were neglected or the relation breached, the issaraphap regime repaired the breach, before reorganizing, transferring, and reestablishing a new issaraphap relation. This new relation was still unequal and had to be coherent with the timeless social hierarchical structure. Under the issaraphap regime, repairing the relationship and upholding the hierarchical structure were the two goals of utmost importance. This led to a question of how the regime formulated and regulated violence against an individual.

3.2. The issaraphap reconfiguration of violence against women

Proceeding from the jurisprudential observations in the previous section, this section elaborates the legal reconfiguration of violence against women as part of the interpersonal and hierarchical issaraphap regime. The issaraphap regime regulated Siamese communities by assigning to the members both the interpersonal issaraphap relations and the duties arising from those relations. Hence, the regime could not formulate violence against women as a violation of her body and autonomy because the regime lacked the concept or fiction of a person as an individual apart from her relations. Instead, under the specific operation of issaraphap, any violence against women was reconfigured as a violation or a breach of the issaraphap relation between the female victim and her father, husband, or superior guardian. Once the violence was committed, it would not be legally translated into an unlawful infliction of harm on the individual victim but would trigger a contestation of the issaraphap claim over the female victim. This contestation implied that the pre-existing issaraphap relation had been breached, hence the breach must be repaired and compensated through a court procedure.

For instance, in the case of Amdaeng Bounnak, her father might describe the event as a kidnapping of Bounnak from him. What actually transpired in the issaraphap regime was a contestation between two issaraphap claims over Bounnak: one from her father, to whom the law automatically granted issaraphap over his daughter, and another from the kidnapper, Roun, who also asserted his issaraphap over her by taking Bounnak away from her father’s issaraphap. Through this situation, the violence associated with the kidnapping was reframed as a legal contestation between the father and the kidnapper for rightful issaraphap relations over Bounnak. Bounnak herself, however, had no separate legal standing because she only existed legally as part of either one issaraphap relation or the other. Thus, any forms of violence against women would not be recognized as violence per se, but rather as a threat to specific issaraphap relations, subsequently leading to the contest between two men to claim issaraphap over the female victim. In the Three Seals Law, one of the most common wrongs, once committed, resulting in the contestation of issaraphap over the woman, was the wrong of chū, inadequately translated into English as adultery. Unlike the contemporary understanding of adultery, chū had a much broader application. This is because the wrongfulness of chū did not stem from infidelity in marriage but from a serious breach of gendered and hierarchical issaraphap relations, which had to be amended by law and custom.

The wrong of chū followed its own logic. On the one hand, for a married woman, the accusation of chū took place when a wife was abducted from her husband or a wife was discovered to have had an affair with an adulterer. When the act of chū was exposed, the issaraphap of the wife became contestable. It is important to point out that the gravity of the wrong in chū lies in the breach of the issaraphap relation and not the amount of violence committed against the women. This could be illustrated by looking at the wrong of chū nuer pua (ชู้เหนือผัว), or adultery above husband. The wrongfulness of chū nuer pua came from the fact that a wife had habitually committed adultery, therefore violating the established vertical hierarchy between men and women by behaving as if she occupied the same status in the hierarchy as her husband and, like him, was capable of seeking multiple spouses.

On the other hand, for an unmarried woman (a daughter), chū constituted a breach of a father’s issaraphap over his daughter when she was abducted or discovered to have a lover without the parent’s blessings. The adulterer could claim his issaraphap over the daughter against her father. The Three Seals Law dictated that to rectify the breach of the father’s issaraphap, the kidnapper must reveal his marriage to the daughter and beg the father for forgiveness with a bouquet of flowers, candles, and incense. As long as the apology was correctly offered, the father was always compelled to accept the marriage and thus transfer the daughter’s issaraphap to the kidnapper-turned-son-in-law. Sometimes, as in the case of Amdaeng Bounnak, this kidnapping situation was legally defined as a case of kidnap (lakphā).Footnote ²⁴ In this article, I use the term chū as an umbrella term to encompass all kinds of breaches specific to the gendered and hierarchical issaraphap relations.

The analysis of the wrong of chū illustrates a framework in which the issaraphap regime articulated violence against women as a conflict involving multiple issaraphap claims over the female victim. Perceived as a contestation between two men, the legal resolution to cases of violence against women, as Loos observes, tended to depend on the negotiations between the two male heads of household involved in the case. The negotiation, Loos comments, appeared to be determined by the social hierarchy of the male parties involved, thereby reinforcing the social hierarchy from which the issaraphap relations originated (Loos, Reference Loos2008, p. 29). While a private negotiation was crucial to achieve legal resolutions in Siam (see also Engel, Reference Engel1978, p. 22), I argue in the subsequent paragraphs that the process of resolving the contestation of issaraphap claims could not be left entirely up to the personal negotiations between the two male parties involved. Rather, both the parties and the court must exercise, what I will call, the legal technique of factual capturing in order to establish and build their arguments for the issaraphap claims over the women. This legal technique could be understood as one of the legal procedures in the trial of issaraphap contestation.

3.3. The legal technique of factual capturing and the regulation of violence against women under issaraphap regime

This montage began by sketching ways in which the issaraphap regime regulated Siamese communities by managing the interplay between interpersonal relations and social hierarchy. The montage also emphasized that the regime did not merely mirror society; instead, it integrated legal relations and duties into the very fabric of social lives, creating a seamless connection between lawful living and community life. This characteristic of the issaraphap regime blurred the line between law and life, and thus might lead to a conclusion that any legal dispute could be resolved through private negotiations between parties, with judges or the people of higher status as mere mediators. However, I argue instead that the resolution to legal disputes concerning issaraphap contestation required a certain procedure and technique that I call the legal technique of factual capturing.Footnote ²⁵

The legal technique of factual capturing enabled parties and judges to capture facts as laws, instead of imputing facts into the legal framework, like the technique of judicial narration in which Kirkpatrick organized, imputed, or re-narrated facts into existing legal elements and doctrines. The legal technique of factual capturing involved identifying the most crucial facts that could support or refute a case. These crucial facts were not simply facts to be imputed into law; rather, they were legal rules in themselves. In the contestation of issaraphap claims, three law-facts had to be captured: the domicile of women, the location where the violent act was committed, and the commission of forced sexual intercourse. These three law-facts helped the court to identify the breach of the issaraphap relation, as well as to distinguish different violent acts that had triggered the breach. As will be elaborated below, the Three Seals Law, while reconfiguring violence against women as a breach of the issaraphap relation, further categorized different acts of violence into various legal forms such as lakphā (ลักพา), chū (ชู้), khuenjai (ขืนใจ), chutkrā (ฉุดคร่า), and khomkhēun (ข่มขืน). By reformulating the contestation into those legal forms, the court could identify the specific breach of the issaraphap relation and its gravity and could determine proper reparations and compensation. Similarly, it was essential for the parties involved to present these law-facts as factual evidence and testimony to the court, thereby building and supporting their claims in the trial. This montage has already referenced some legal forms, such as lakphā (kidnapping) and chū. This section will elaborate on these two terms and the most significant legal term in the history of sexual violence in Thailand, khomkhēun. I will turn now to the first law-fact.

The first law-fact to be considered is the domicile and physical movement of a woman. This law-fact was captured as one of the many important facts used in locating a woman’s issaraphap relation. By placing women under the issaraphap relation, the regime also located them under the roof of a male head of household. Once the woman moved away from the domicile, a man’s issaraphap over her could become questionable if not contested. For instance, in the case of Amdaeng Bounnak in Kirkpatrick’s case, her family members went in hot pursuit after finding out that she was kidnapped in order to bring her back home, where they could declare the father’s issaraphap over her. As she was kidnapped from home, her father’s issaraphap over her immediately became contested by the kidnapper. Only after returning to her father’s house could Amdaeng Bounnak be placed under her father’s issaraphap again. Then the father could bring his issaraphap claim over her to the court. Similarly, in the case in which a court lady escaped into the British legation, the physical movement of the woman suggests or at least corresponds with the transfer of issaraphap itself. The Three Seals Law also follows this logic of physical movement as reflective of changes in issaraphap claims. The law placed a hefty fineFootnote ²⁶ on a house owner who hid a daughter or a wife from their respective male head of household (Sakonsatarnpitak, 1925, p. 9). This is because doing so would deprive a man of the ability to bring the woman back home under his issaraphap. While it is an exaggeration to state that issaraphap governed the domicile and physical movement of women, it is plausible to suggest that issaraphap usually kept women under the domicile of the male head of the household who held issaraphap over her. The domicile of the woman is therefore one of the law-facts determining the issaraphap over the woman, and the act of taking the woman away from her usual domicile would contribute to proof of the breach of issaraphap over her.

Second, the seriousness of the breach of issaraphap, especially in the wrong of chū between husbands and wives, depended on the place where the affair or incident of violence was committed. For instance, if a husband found his wife and the adulterer having intercourse in his house, the law allowed him to exercise his customary right to revenge, killing both the wife and the adulterer if he so chose.Footnote ²⁷ But if the act of chū involved taking the woman away from her house, the law distinguished the case of chū from other secret meetings between lovers through the place of the meetings.Footnote ²⁸ In a legal manuscript found in the North-Eastern region, chū was deemed not to take place if the woman and the adulterer had intercourse in a forest away from any prying eyes (Channawej, Reference Channawej2017, pp. 77, 86). A secret rendezvous between lovers that was not literally “seen” by the public would not amount to a breach of issaraphap. This implies that one of the law-facts that must be captured to prove the chū was a public and physical act of kidnapping.

The public visibility of the act was also crucial in other contexts, especially when considered in relation to the third law-fact, which is the presence of forced sexual intercourse. The Three Seals Law captured different manners and variations of the public display of violence in many legal terms (see Loos, Reference Loos2008, pp. 26–8). If the public display of kidnapping was followed by forced sexual intercourse, the Three Seals Law would encapsulate both the events of the kidnap and the sexual act in the single and elusive legal term of khomkhēun (ข่มขืน). While the Three Seals Law never defined khomkhēun, legal manuscripts in the North-Eastern region describe the act of khomkhēun in longer and more explanatory sentences, such as “a man has forced sexual intercourse with a woman and the woman screams until people hear her” (Channawej, Reference Channawej2017, p. 77). Interestingly, the explanation highlights not only the use of force in sexual intercourse but also the simultaneous and public display of the woman’s resistance.

This dynamic of force and resistance closely resembles the act that is understood as rape in Western law. It, perhaps, might not come as a surprise that the term khomkhēun, as the third montage will further elaborate, was selected as the Thai linguistic equivalent of the English term rape. However, within the regime of issaraphap, khomkhēun did not refer to the heinous crime of rape which has its own legal formation and development beyond its modern formulation as a sexual offence in the West (see Farmer, Reference Farmer and Farmer2016). Under the issaraphap regime, khomkhēun was a law-fact that signified the factual event of forced sexual intercourse with a persisting display of the victim’s resistance. In the issaraphap contestation trial, if the fact of khomkhēun was established through witnesses’ testimonies or captured by the court, it would prove that the issaraphap relation between the injured woman and her husband had been challenged and breached by the person who had taken the woman away and had forced sexual intercourse with her. In short, under the issaraphap regime, khomkhēun was a fact captured by law in a particular trial, and could not be equated to the crime of rape in Western law.

The law-fact of khomkhēun, which involves the public display of abduction and the victim’s ongoing protest throughout the abduction, might be interpreted as indicative of the victim’s lack of consent or as a sign that the issaraphap regime would disregard her autonomy unless there was a physical display of protest. These concerns, however, do not seem to hold much weight within the issaraphap regime. This is because the regime did not operate under the assumption of individual qua individual, and therefore would not concern itself with the question of the woman’s consent as an independent element to be established in the case.Footnote ²⁹ Yet, the public expression of resistance or “scream until the people hear her” was critical within the issaraphap regime. This public display served to alert the victim’s friends and family members to pursue and bring her back. Once the woman was returned to her original domicile, the male head of the household who had issaraphap over her could bring a claim to the court against the person responsible for the khomkhēun, meaning kidnapping and forcing sexual intercourse. This entire social and legal performance—where a woman was kidnapped or forced to have sexual intercourse, then returned to her original home before her father or husband initiated the issaraphap contestation trial—might be more accurately understood as a ritualized practice through which an issaraphap relationship could be breached and contested.

For example, in the case of a staged abduction, such as that of Amdaeng Bounnak, the ritual involving forced kidnapping, the woman’s protest, and her return home; and in the subsequent court trial, the performance was repeated. Even though Bounnak’s trial later revealed that she consented to be taken away, the ritualized performance of khomkhēun must be first performed to initiate the challenge to her father’s issaraphap claim over her. This means that there were no legal and factual differences, at least in terms of how things transpired between the involved parties, between staged abduction and khomkhēun. However, once the trial began, it was up to a female victim like Bounnak to rally witnesses, and perhaps the whole community, to be on her side and prove to the court her version of the story. She must follow the legal technique of factual capturing, identifying crucial facts that would support her case.Footnote ³⁰ Those crucial facts, the law-facts, were unimportant in Kirkpatrick’s record of the case.

Without the complete transcript of Bounnak’s case, and with only a few surviving written manuscripts of judgments or legal trials before the 1850s, questions regarding trial procedures and the full picture of how violence against women was regulated under the issaraphap regime will remain obscured and debatable. Yet, this montage has attempted to envision the issaraphap regime as an intertwined legal and lived experience where individuals exist only in relation to one another and to hierarchical communities. In this regime, violence against women is not merely an individual concern and not simply about two men contesting their issaraphap over a female victim.Footnote ³¹ The legal technique of factual capturing implies that various legal forms of violence could be proved or disproved through trial procedures involving the entire community as witnesses in the trial.

As a legal regime that aimed not to protect individuals but communities, the issaraphap regime recognized and regulated violence against women by reconfiguring it into the breach and contestation of interpersonal relations concerning the female victim. By resolving the contesting issaraphap claims and ordering compensation for the breach, the regime successfully maintained the interpersonal relations between individuals and the hierarchy of the community as a whole. This, of course, does not mean that the regime completely ignored individual victims, but rather suggests an alternate legal iteration and configuration of violence as a breach of the legal and social bonds of the community. Consequently, the legal subject of violence under the issaraphap regime was not the female victim, but a set of interconnected relations and the community as a whole. This community, nevertheless, collapsed abruptly once Siam began its path to modernization in the late 1800s. The interpersonal issaraphap hierarchy, along with the regulation of female residence and the public display of force and resistance in abduction, was erased and replaced by modern legal concepts with new legal techniques, particularly when the 1908 Siamese Penal Code criminalized and modernized violence against women.

4.1. The travel and translation of the English “rape” to Thai “khomkhēun”

The earliest official written record of the English term rape in the Thai legal archive is found in the Chiangmai Treaty between Siam and Britain, signed in 1883 (Great Britain Foreign Office, 1882, pp. 78–84). This document is one of the notorious unequal treaties that extended and strengthened British extraterritoriality in Siam (see Tzouvala, Reference Tzouvala, Margolies, Özsu, Pal and Tzouvala2019). In pursuit of their interest in the teak business in the newly conquered British Burma, the British sought to rely on Siam to exercise suzerainty over the northern kingdoms along the Siamese–Burmese borders in order to legally protect British interests (Barton and Bennett, Reference Barton and Bennett2010). The Chiangmai treaty established the unique system of the International Court, in which British Asiatic subjects were tried by Bangkok-appointed judges under Siamese law (Sayre, Reference Sayre1928, pp. 76–88; Iijima, Reference Iijima2008). More importantly, the treaty imposed reciprocal obligations in the extradition process, according to which the governments of Siam and Britain must cooperate to deliver persons accused of committing any of ten heinous crimes. In the English language version of the treaty, rape was listed as one of the ten crimes without any elaboration (Great Britain Foreign Office, 1882, pp. 78–84). However, the Thai language version of the treaty not only transliterated the lists into Thai but also provided brief explanations of each crime. For the crime of rape, the Thai language treaty transliterated the English term “rape” into “rēp” (เรป) in Thai and then defined rēp as forced sexual intercourse, taking place in any of five scenarios: against the woman’s will, the woman did not consent, the woman consented out of fear, the woman mistook the perpetrator for her husband, or the woman was under 11 years of age (Great Britain Foreign Office, 1884b, pp. 68–89; Great Britain Foreign Office, 1884a, pp. 90–2).

Whether the definition of rēp in the treaty was followed and enforced by the Chiang Mai International Court is unknown, but other legislation clearly shows that Siamese elites at that time began to understand rēp as a serious crime. The crime of rape was incorporated into the emerging corpus of Siamese written statutes in 1898 when the Statute on Rape was enacted. This statute, however, did not use the Thai transliteration “rap” but translated the English term rape into Thai as khomkhēun luang prawēnī (ข่มขืนล่วงประเวณี). The term combines khomkhēun with luang prawēnī, the latter meaning “having connection” or sexual intercourse. The statute bore a striking resemblance to the treaty. It defined rape as sexual intercourse that was done through any of four scenarios: against the woman’s will, the woman did not consent, the woman consented out of fear, or the woman was under 12 years of age.Footnote ³³ These enumerated scenarios in the statutory definition are similar to the ones provided in the Chiangmai treaty. Without reading too much into this coincidence, it appears that one of the motivations behind the 1898 statute was to foster a better liaison and legal cooperation, especially in the extradition process, with foreign powers.

Regardless of the intention behind the enactment of the 1898 statute on Rape, the decision of the drafters of the statute to translate the English term rape into “khomkhēun luang prawēnī” should not be taken for granted. As discussed in the second montage, khomkhēun was not a newly invented word but had long been used as a linguistic proxy for a specific law-fact, dictating the male use of force and the woman’s corresponding act of protest in the complex issaraphap contestation trial. Through the process of linguistic translation, khomkhēun was lifted out of the hierarchical regime of issaraphap, which gave the term a specific meaning, and was presented simply as the Thai equivalent translation of rape in English. Although the term khomkhēun was laden with its own historical and social connotations, its construction as an artificial equivalent of the English crime of rape made it paradoxically a conduit that might carry the meanings and assumptions of the English term into the Thai language.

4.2. The Siamese jurists’ commentaries and the construction of rape as a legal doctrine

While the linguistic translation of the English rape into the Thai khomkhēun was completed in 1899, the process of legal translation had only just begun. The 1899 Statute on Rape brought to the emerging modern legal landscape in Bangkok a new legal language of rape that required further legal development. Rape was not only transmitted to Siam through linguistic translation but also simultaneously through legal criminalization. The four scenarios listed in the statute had to be explicated in a legal manner and, to achieve this, there was a need for legal doctrines to guide the reading and interpretation of the text.Footnote ³⁴ The task of legal doctrine building fell into the hands of a group of Siamese legal elites, who had returned home after completing a law degree abroad, as well as a multinational group of foreign legal advisors serving the Siamese government (see Kittayapong, Reference Kittayapong1990; Loos, Reference Loos2006, pp. 49–71; Reekie and Reekie, Reference Reekie, Reekie, Harding and Pongsapan2021). Prince Rabi, who sat with Kirkpatrick at the Ayuthia court, took the lead in developing modern legal doctrine in Siam. Rabi worked in a translingual space where his documents contained both Thai and English terms.Footnote ³⁵ He also actively translated, transliterated, or invented new vocabularies in order to build the corpus of modern Siamese law. His translation techniques, however, were not intended merely to achieve linguistic equivalence but were also informed by the self-imposed task of modernizing Siamese law along the lines of what was considered Western “civilization” (see Suwanapech and Plessis, Reference Suwanapech and Du Plessis2021; Harding, Reference Harding, Nicholson and Biddulph2008). With these motivations, and perhaps through his legal training at Oxford, Rabi invented and relied on a specific legal technique of legal doctrinal construction.

For the new generation of Siamese jurists, under Rabi’s leadership, the technique of legal doctrinal construction began with an act of linguistic translation. Typically, they would artificially construct a Thai word to serve as an approximate equivalent of a foreign legal concept. However, what determined whether the translation was “right” seems to have been their modern legal sensibility. In the early development of modern and Western criminal law in Siam, the jurists, for instance, were preoccupied with the question of how to legally infer a mens rea—a required mental component of a crime—from an action. In order to import the concept of mens rea to Siam, the jurists first translated the term mens rea into the Thai language before explaining it with different hypothetical scenarios. This task may have seemed logical and straightforward, but in reality there were several trials and errors before the translation of mens rea, “sounded right.” Mens rea was translated to Thai as cēttanā (เจตนา) khwām tangcai (ความตั้งใจ), and citrakhāt (จิตรฆาฎ). Each translated term aimed to make the Thai term more closely approximate the meaning of mens rea (Rabi Bhadhanasakdi, 1909, pp. 44–58, 193–5). Before settling on a linguistic translation of mens rea, different hypothetical scenarios, especially unusual ones, were supplied by the legal elites to illuminate and demarcate the meaning of each translated Thai term. The scenarios also demonstrated how to “find” mens rea in different situations.

This technique of legal doctrinal construction cannot be equated merely with the systematization of law, which was the ostensible purpose of the legal codification project. Rather, the technique appears to have had two interconnected goals: first, the jurists aimed to establish a standard legal doctrine applicable to as many cases as possible; second, they sought to address differences and nuances between English and Thai languages by employing a casuistic or case-based approach.Footnote ³⁶ As the English to Thai translation provided the jurists with new legal neologisms, the jurists regarded these neologisms not simply as new translated terms but as legal doctrines that must both reflect the text of the legal code and function as a standardizer in the application of the code. Working with these linguistic-neologism-cum-legal-doctrines, the jurists determined the boundaries of linguistically translated terms by applying them as legal doctrines to different scenarios and cases.

It is beyond the scope of this article to analyse the use of the case-based approach to fix both the excess of translation and the lack of legal standardization in the early years of Siamese legal modernization. However, it is important to point out that the case-based approach, or casuistry, has long been part and parcel of legal development and training in Europe (see Samuel, Reference Samuel2015; Hunter, Reference Hunter2020) as well as in Siam. One could perhaps think of the legal technique of factual capturing in the previous montage as a case-based technique because the technique also attempts to solve a practical problem by drawing from some topical facts and patterns of argument. In this montage, I want to raise the interconnected issue of linguistic translation and doctrinal construction and to describe, in the next paragraphs, how Rabi employed and exploited the new linguistic neologism of khomkhēun as rape to illustrate the concept of rape by introducing a new form of legal knowledge based on mind/body bifurcation, and to simultaneously instruct emerging Siamese jurists on practical legal application of the code.

In the discussion of rape law, mens rea did not present an immediate problem as part of the doctrinal construction. However, the question of how to infer intent from a physical action in rape cases arose when the jurists attempted to distinguish the phrases “against the woman’s will” and “the woman did not consent.” Prince Rabi responded to this legal-linguistic problem with his technique of legal doctrinal construction. He offered a brief commentary in Thai language on the 1899 Statute of Rape law explaining the distinction between these two phrases:

In the commentary, Rabi distinguishes the two legal phrases by referring to the woman’s physical resistance and mental disaccord. The first phrase “against the woman’s mind” refers to physical and visible resistance while the second phrase “the woman did not consent” is limited to the mental inability to consent because of deception or drug use. From the commentary, Rabi seemed to assume and recognize a woman’s autonomy to act according to her will. However, he also had the practicality of the statute in mind. Rabi further constructed legal doctrines, not with the direct aim of recognizing the autonomy of the victim, but to prevent a practical legal problem that could arise as to how to determine a woman’s will. This legal question could be answered, according to Rabi, by scrutinizing the woman’s action and other facts of the case. To find out whether the forced sexual intercourse was committed “against the woman’s mind,” the jurist could legally draw a conclusion from her physical resistance. On the other hand, to determine whether the woman did not consent, the jurist could draw inferences from circumstantial facts such as the existence of deception or the use of drugs. Thus, in this commentary, Rabi introduced to the regime of rape law a bifurcation between mind and action, and he offered a legal method to infer a mental stage, be it mind or consent, from the facts of the case. The phrases “against the woman’s mind” and “the woman did not consent” became new linguistic-neologism-cum-legal-doctrines that carried with them two different legal meanings. The former correlated to the material reality of physical resistance, while the latter corresponded to the circumstantial facts of the case. This legal know-how on how to legally prove the mental state of the victim added another layer to the meaning of rape, and re-illustrated rape as an event that required a form of coercion to the mind of the victim. His commentary could be an instruction on how to read the physical resistance and other facts of the case as evidence of the coercion of the mind. It is important to note that this reading of rape as a crime that involved a mental state of the victim was first introduced into Thai jurisprudence in Rabi’s commentary.

Nevertheless, in spite of Rabi’s commentary, when the 1908 Penal Code was finally promulgated, the Drafting CommissionsFootnote ³⁸ decided to drop the phrase the woman did not consent (Rabi Bhadhanasakdi, 1909, pp. 191–2). Instead, the commissions defined rape as “whoever uses physical or verbal acts to have sexual intercourse with a woman against the woman’s mind, that person commits rape.” The code also separately defined rape by deception as “whoever uses deception to have sexual intercourse with a woman against her mind, that person commits rape.” Rabi quickly expressed his disagreement with this language in his treatise on the code, especially with regard to its focus on “against the woman’s mind” inferred from physical resistance. Nevertheless, as a commentator on the law as it was finally enacted, Rabi still provided an analysis of the crime of rape. Again relying on his legal technique of doctrinal construction, he listed and explained four hypothetical scenarios in which rape could be found according to the code. While the four scenarios described by Rabi aim to guide the Siamese judges in their application of rape law to the facts of the cases, the judges did not seem to follow Rabi’s instruction as they faced the reality that criminalization brought to the Siamese society.

4.3. The Siamese judges and the legal technique of judging

Rabi’s commentaries illustrate how the legal doctrine of rape was constructed through a process of linguistic translation followed by a distinctive legal technique of doctrinal construction, combining linguistic translation with a specific casuistry method. However, these techniques were only adopted by the small group of jurists who assumed the role of legal textbook writers. Siamese judges at the beginning of the 20th century did not share the jurists’ preoccupation with discerning a mental element of a crime from the material facts of the case. Instead, the judges were more concerned about how to exercise their newly acquired power to order criminal punishments.Footnote ³⁹ As mentioned earlier, until 1896, the Siamese judiciary had no discretion to order any criminal punishment without the king’s approval. Rather than engaging in the abstract process of identifying mens rea for a crime, the judges assumed the role of just arbiters whose main duty was to impose punishment in proportion to the crime committed. As the court must respond to the actual cases before them, they could not rethink the crime of rape from a blank page like the jurists. Instead, because of their institutional function, judges had to apply and develop a technique of rendering judgment. The exercise of this technique can be exemplified in a case of attempted rape decided in 1912 (Supreme Court Decision 59/RS131), four years after the promulgation of the 1908 Penal Code.

In that case, the Supreme Court in Bangkok explained the application of section 243 (rape) of the Penal Code (Sutthamwinicchai, 1914, pp. 144–7). The defendant, Jem, was charged with attempted rape as he was found to sneak into the victim’s, Amdaeng Hun, house. The court accepted the fact that Jem attempted to rape the victim because multiple witnesses saw Hun resisting. However, the court pointed out that Jem and Hun were part of the same extended family and shared the same provincial hometown. Therefore, the court held, they should settle this dispute between themselves. Framing the case as a private and community matter, the court refused to order the minimum one-year imprisonment as punishment for rape but reduced the sentence to six months. The court also reasoned that it was the defendant’s first offence and the defendant had been well-behaved and, therefore, the reduction of the punishment was suitable. This case shows the lingering legacy of the issaraphap regime and its formulation of violence against women as a breach of community and interpersonal relations.Footnote ⁴⁰ More importantly, it affirms that the court was willing to follow the old reconfiguration of such violence and to exercise its discretion to sidestep the application of the Code and the crime of rape.

The court’s exercise of its power to judge was not only part of its experimentation in judging and punishing with the modern Penal Code but also part of the court’s search for justice in the modern system. The case of Jem and Hun shows that the main legal problem that arose around rape cases after the promulgation of the Code was not about the manner in which the woman resisted or her lack of consent, as Rabi envisaged. Instead, the court faced the problem of injustice produced by the Code’s absence of a distinction between criminal, and family and community matters. The 1908 Penal Code produced a new and expansive space of crimes and extended the state’s power to punish. However, by so doing, the Code also imposed a heavy penalty on offenders who might not be subject to any imprisonment at all under the traditional issaraphap regime. What had been traditionally understood as family and community matters, such as the abduction of women, was rearticulated as a serious and punishable crime. This sudden criminalization of forms of violence that had been traditionally understood as community issues led to a situation the court deemed unjust. Therefore, as the 1912 case illustrated, the court was keen to circumvent the Penal Code, or, to put it directly, to lessen the punishment mandated by the Code, in order to redress an injustice that would otherwise result from this modern criminalization.

The Supreme Court’s decisions on the matter of chū or adultery provide additional examples of how the judges intended to sidestep rather than apply specific sections of the 1908 Penal Code. The wrong of chū had been recognized as the most important violation in the issaraphap regime, yet it was not included as a crime in the Code. Despite the absence of chū or adultery as a crime, ordinary people continued to bring cases of chū and perhaps expected the courts to resolve these conflicts as family matters. However, because of the requirements of the Penal Code, many chū disputes were rearticulated as criminal matters. In the early 1900s, there were many cases pleaded on the accusation of murder, especially the murder of an adulterer by a husband. As mentioned earlier, the right to revenge was legal under the issaraphap regime if the husband found the wife and the adulterer having sexual intercourse in the husband’s house, but no such right was included in the 1908 Penal Code. The court, therefore, attempted to justify this form of revenge by explaining that the husband committed the murder to protect his reputation, as in the case Dika 1466/131 in 1912, or because he was enraged by the adulterer, as in the case Dika 19/128 in 1909.Footnote ⁴¹

These cases showed an attempt by the court, not only to restore justice to the parties but also to systematize law based on the modern legal structure of offences and mitigation factors. Anger as a mitigating factor, for instance, might be drawn from the common law distinction between murder and manslaughter but was used, in the Siamese context, to justify and recognize the husband’s traditional right to revenge. The judges, like the jurists, also worked with the new linguistic-neologism-cum-legal-doctrine, such as anger. However, the judges’ techniques of judging encouraged them to confront the broader context of both the society and the parties affected by the rapid criminalization and modernization of law. By contrast, the jurist’s technique of translation and legal doctrinal construction allowed them to distance themselves from the impact of their law-making. Both the judges and jurists in this transitional period in Siamese legal history shared the sensibility of legal modernity and supported the effort to modernize law. The techniques they employed, nevertheless, led to different understanding of the crime of rape.

The early statutes on rape and the 1908 Penal Code not only criminalized and modernized rape by inserting the crime of rape or khomkhēun as a new linguistic neologism-cum-legal-doctrine, but they also profoundly changed legal practices in Siam. Although lawyers from various new legal institutions collectively pursued the modernization project, it is evident that they employed different and uncoordinated legal techniques to engage with this new doctrine. Hence, they constructed multiple meanings of modern law in general and the crime of rape in particular. Nonetheless, what united judges, legal drafters, and textbook authors in their separate pursuits and institutional functions was the common language of law, created by the translation and appropriation of English legal terms and concepts. Therefore, despite the discordant and unstable interpretations and applications of the 1908 Penal Code and its legal terms, the judges and jurists had successfully invented their own legal dialect along with a distinct body of legal knowledge and legal practice. This style of professionalized practice distinguished them from the rest of the society, and the rest of the modern state bureaucratic officers, marking the core of their identity as modern Siamese lawyers (see Kesboonchoo Mead, Reference Kesboonchoo Mead2004, pp. 134–42). By highlighting this emerging group of lawyers, this montage has shown that criminalization and modernization of law in Siam cannot be rhetorically described as an epoch-breaking transition from a community-based regime to a modern, liberal, and individual-centric legal regime. The watershed and immediate impact of the 1908 Penal Code was not the social transformation but the creation of a professionalized class of Siamese lawyers with their own worldviews, discourses, and scholarship as well as their own institutions, such as law schools and judicial courts.

While the criminalization of rape and the constitution of the subject of rape were not at the forefront of their efforts, these issues could only be illuminated by looking at the broad legal modernization project at that time. Through the translation and criminalization of rape, the jurists and judges had successfully built a façade of law and legal institutions over what had previously been understood by laypersons in the community as a breach in interpersonal issaraphap relations. The crime of rape, in the world of jurists and judges, was a legal doctrine that must be explained, interpreted, applied, and judged by the emerging legal profession endowed with a distinctive form of knowledge and trained to be fluent in the new language of the law. Because of the plethora of legal techniques from different legal institutions, no clearly defined subjects of rape emerged from this montage, yet the path was now established for the later development of rape as a crime and a legal doctrine.

5.1. Ethnographic visualization of Thai women and the drafting of the 1956 Penal Code

The RRPC followed two working principles in their drafting of the code. First, the RRPC referred to foreign codes around the world in order to compare the Thai words with the words used in other codes translated into English. In the discussion of rape alone, the Italian Code, the Code of the Republic of China, and the English law were mentioned. Second, the selection process involved a method of casuistry, similar to the one employed by Prince Rabi, in which the RRPC attempted to apply the selected words to different hypothetical scenarios and determine whether the words could precisely bear on them. This process of elaborating a term or a concept based on scenarios or hypothetical situations is, as we have seen in the previous montages, not new. What is remarkable, however, about the RRPC is their employment of the technique of ethnographic visualization to enhance richness and vividness of the hypothetical scenarios that they sketched out.

In the RRPC’s meeting on 6 October 1942, the members debated whether to drop the phrase “against her will” from the Code and each member referred to various scenarios to support their positions (The Sub-committee on Reviewing the Revision of the Criminal Code, 1942). When considering the phrase “incapacitating the woman to resist,” for example, they cited a situation in which a senior government officer might abuse his power in order to rape a junior female government officer. The discussion of rape by deception also referred to various examples, such as the magical transfiguration of the rapist into the victim’s husband, the requirement of sexual intercourse between a hermit and the female victim to activate black magic,Footnote ⁴³ a deception as to the marital status of the rapist, as well as a doctor deceiving a female patient to have sexual intercourse as part of the medical procedures. In the debate on whether to drop the phrase “against the woman’s mind [ขืนใจหญิง],”Footnote ⁴⁴ the members also considered the practice of arranged marriage that they deemed common among the overseas Chinese in Thailand, as well as a situation in which a daughter might agree to have sexual intercourse with a judge in order to help her accused father.

Drawing on the illustrations provided by these scenarios, the members discussed different images and roles of women in society. Unlike the previous montages in which a certain phrase or linguistic proxy conveyed a simple act of force and resistance (Kirkpatrick) or an abstract notion of mind and body (Prince Rabi), the explosion of images in the RRPC’s debates shows a technique of concept construction that derives from fragments of illustrative images. The textual definition of rape as well as the new legal phrases introduced by the RRPC carried with them rich images of Thai women in different professions, races, and roles. What tied these diverse images together was the overarching narrative of the Thai nation-state and the portrayal of women whom the state asserted and claimed to have the authority to protect and rule over as its subjects.

Among various scenarios, two notable images of Thai women emerged from the RRPC’s debate over rape law. The first image is that of a filial daughter. Members of the RRPC described the practice of forced marriage as common among the overseas Chinese in Thailand (see also Bao, Reference Bao, Jackson and Cook1999; Bao, Reference Bao2003). When a woman was forced to marry and then had sexual intercourse with her husband, she might physically and externally protest this marriage by, for instance, crying or attempting to flee. However, even though her external manifestation of protest would constitute a lack of consent, the committee members argued that the forced marriage scenario should not fall within the ambit of rape law. The marriage, the members argued, might not be forced against the will of a filial daughter, who, despite her physical protestation, would mentally accept sexual intercourse with the man of her parent’s choice. These dutiful daughters were not seen as victims of rape but rather as “good” and obedient daughters. The good woman in Thailand, as Harrison rightly observes, is determined by her relationship to the institution of the family (Harrison, Reference Harrison, Jackson and Cook1999, p. 168). Rape law, as the RRPC understood it, reflected and absorbed this image of “good women” by refraining from intervening in the private lives, and left them to be governed by their families.

The second and more important image is the village woman. In discussing whether rape by deception should be considered “against the woman’s mind,” members of the RRPC were worried about the case in which a woman might believe the deceptive words of a hermit or a doctor who asserted the need to have sexual intercourse with her as part of a magical spell or a medical procedure. The committee members thought that these cases might fall outside the scope of “against the woman’s mind” and that the law would fail to protect Thai people who “are still largely stupid” (the Sub-committee on Reviewing the Revision of the Criminal Code, 1942, p. 5). For this class of women, the RRPC deemed it necessary that the law should not permit them to act freely of their own will. Even though the woman willingly agreed to have intercourse, the law should override her choice and should protect her and prosecute her deceiver.

The RRPC ethnographically visualized these two images of Thai women as part of their law-making process. This was a relatively new technique. The images of women in rape law could perhaps be glimpsed in the earlier montages but the images were never produced directly to formulate or justify a legal debate. While both images suggest that the RRPC was concerned with tailoring the law specifically to Thai society, the fabulous imagining of female subjects within the Thai nation-state demonstrates the nationalist ideology common among legal elites at that time. The first image represents a middle-class urban woman as an obedient daughter, whose autonomy and virtues should be protected by her family rather than the law. In her study of the portrayal of women in nationalist fiction written during the reign of King Rama VI (1910–1925), Thamora Fishel argues that the image of the good woman for the nation is linked with an ambiguous understanding of Western modernity (Fishel, Reference Fishel, Jackson and Cook1999, pp. 158–62). Siamese women must be liberated and Westernized, adopting Western gender roles and beauty standards. However, they cannot be too “westernized”; their obedience to Western norms and liberty must be “circumscribed by bourgeois notions of domestics and sexual respectability.” This means that, while adopting Western norms and values, women must nevertheless perform their roles as a dutiful wife and a benevolent mother.Footnote ⁴⁵ In turn, these women will be rewarded with love, care, and loyalty from their husbands. Reflecting Fishel’s argument, the RRPC seemed to adopt this image of bourgeois and urban women, a cultural construct worthy of the love of nationalistic male elites.

By contrast, the second image depicted an uneducated, superstitious rural woman perceived as incapable of acting autonomously. This image reflects the stereotype of rural women as mired in the traditional way of life and, hence, as spiritually vulnerable and materially lacking. The construction of this image of rural women, as a homogenous and powerless group, could be traced back to the Thai state’s attempt to legitimize its authority to rule, notably by creating what Thongchai Winichakul (Reference Winichakul and Turton2000a) called the Others within (คนไทย/คนอื่น). Thongchai coined this phrase in his study of the Bangkok elites’ travelogue and ethnographic reports of the hinterlands from 1885 to 1910 which, he argued, othered rural people (chāo bānnōk ชาวบ้านนอก) at the margins of society as the docile others. The Bangkok elites viewed themselves as carrying the burden of civilized urban people (chāo muang ชาวเมือง) and could claim it was their responsibility to civilize and rule those people of the other villages. Building on Thongchai’s argument, Sinith Sittirak (Reference Sittirak2019) wonderfully traces how the pre-existing image of rural people had been further constructed during the wave of transnational development movement in the 1980s.Footnote ⁴⁶ Even in this later period, the Thai state continued to characterize rural Thai women as “little more than victims of, for example, poverty, male violence or traditional belief systems.” The Thai state, as declared in its Five Year Plan on Woman and Development (1982–1987), must “improve their status economically, socially, and politically as well as to include their participation in all aspects of the country’s development” (p. 64). It is perhaps not surprising that RRPC in the 1940s adopted the same attitude. By overriding the will of rural women whom they deemed uneducated and incapable, the urban legal elites could position themselves as benevolent rulers embarking on a civilizing mission or a development programme. As late as 2014, the Thai Supreme Court employed nationalist images and reasoning to find that the victim was “innocent and foolish” enough to believe that having sexual intercourse with the rapist would bring her luck (Supreme Court Judgment 10007/2557; see also Chen and Triratpan, Reference Chen and Triratpan2020). The repeated reconstructions of rural women as poor and uneducated continued for more than a century. The crime of rape was one of many contexts in which the image was reaffirmed.

5.2. Images of Thai women and the Thai Supreme Court after 1956

If the RRPC, through its technique of ethnographic visualization, constructed images of rape victims as poor and stupid women to justify the state’s intervention to override the women’s autonomy, the same, yet more complicated, technique of constructing such images could also be found in court judgments. As we have seen, the RRPC decided to remove both the phrases “against her mind” and “without her consent” and instead adopted the use of force as the sole requirement in rape law. The use of force was conceptualized as an external force used by the rapist, and any inquiries into the victim’s state of mind or its external manifestation were likely irrelevant.Footnote ⁴⁷ To confirm pre-existing violence and force in rape cases, the court soon turned to employing the victim’s wounded body as the clearest evidence of force (Preechasilpakul, Reference Preechasilpakul2015). The information on the victim’s wounded body had also become easily available and was presumptively credible because it was contained in medical reports since the beginning of the 20th century (Pearson, Reference Pearson2020). Relying on concrete and scientifically rationalized medical knowledge, the court could draw from the victim’s medical reports the graphic details of any abrasive wounds around the vulva, bleeding, traces of seminal fluid inside her vagina, and tears to the hymen. With clear and detailed information about the victim’s body, Thai courts began to draw heavily on medical expertise not only to determine the use of force but also to prove that sexual intercourse had occurred and sometimes even the defendant’s intent to commit the crime. While these detailed reports helped the courts in their legal doctrinal analysis, the graphic images of these bodily wounds also tended to confirm the image of women in rape law as poor and pitiful victims of extreme violence rather than autonomous legal subjects capable of granting or withholding consent.

The Thai court’s usage of medical reports after 1956, nevertheless, was not an innovation. Wounds, injuries, dead bodies, and human psychology are deeply implicated with law and legal trials. The medical advancement that provides narratives and understanding about human bodies and their decay also goes hand in hand with the development of new legal doctrines, rules, and procedures.Footnote ⁴⁸ While recognizing the complexity and history of the medico-legal regime, this montage intends to examine a specific legal technique of medico-legal interpretation that the Thai Supreme Court has employed to legally interpret the wording of the 1956 Penal Code, particularly the requirement of forced sexual intercourse as the most important element to establish the crime of rape. On the one hand, the montage shows that the court relied on these medical reports to justify and legitimize the judicial interpretation of the code. On the other hand, the excessive and disturbing graphic description of the female bodies in the reports also renders it easier for the court to visualize, fantasize, and speculate about rape as an event told through wounded and injured bodies. Ultimately, the montage will illustrate how the legal technique of medico-legal interpretation enables the court to conjure up legitimate and medically certified images of the victims’ bodies, sometimes only of wounds and injuries without the rest of the bodies, and how these images were used to aid the textual doctrinal interpretation of the code. It is through the function of the technique, rather than the court’s conscious or unconscious attempt to discredit the victims, that the victim’s voice and story are erased. To examine this technique, I will first look at a series of cases involving the attempted rape of little girls by adult males and, second, the Thai Supreme Court’s attempt to formulate a legal definition of sexual intercourse.

In the first group of cases, the Supreme Court had already found that the victims were all underage and lacked the capacity to consent to sexual intercourse. However, the court needed to further decide whether the defendants were guilty of rape as opposed to attempted rape.Footnote ⁴⁹ Specifically, the court had to determine whether sexual intercourse between a young girl and a grown man is possible at all. If such act is impossible, the defendants would only be guilty of attempted rape with reduced sentences. In a case decided in 1978, the Supreme Court ruled that the defendant was not guilty of rape but only of attempted rape because when he tried to penetrate the vagina of a female child, it was too small for his penis to penetrate and the attempts only left wounds around her sexual organs (Supreme Court Judgment 1673/2521). Even though the court accepted that, due to the scattered wounds on the victim’s body, the defendant had evidently tried to penetrate the victim, because the size of her vagina rendered the act of sexual intercourse impossible, the defendant was found guilty only of attempted rape. In a later case decided in 1991, the court found that a defendant had not penetrated the victim (his daughter) but simply rubbed his penis around her vagina, as evident in the medical confirmation of abrasive wounds. Therefore, the defendant had no intention to rape her. More recently, in 2012, the Supreme Court arbitrarily ruled that the reddened wounds around the victim’s sexual organs did indeed indicate the defendant’s intention to rape her (Supreme Court Judgment 4164/2555). However, since the victim was only six years old, it was impossible for the defendant to penetrate and, hence rape the child. The impossibility of completing the intended crime meant that the defendant could be found guilty only of attempted rape, even though he had made this attempt on more than ten occasions. From these cases, the court’s distinction between rape and attempted rape based on the size-compatibility of the parties’ sexual organs appears to have been founded on judicial pseudo-science and the judges’ own observation of the victim’s wounds without any attempt to medically prove the impossibility of the penetrative act. The images of the female bodies from the reports allow the court to further fantasize the manner of rape, and use that scientifically supported fantasy to aid the interpretation of the law.

In a second group of cases, the court’s reliance on and manipulation of medical reports can be illustrated in a debate on whether the act of ejaculation, as evidenced by the trace of seminal fluid on the victim’s body, or penetration, proved by wounds around the victim’s vagina, should be the deciding factor in determining whether sexual intercourse had fully taken place. This debate derives from a precedent case in 1966 holding that a person was guilty of rape when he had penetrated into the victim’s vagina for about one finger joint (ongkhulī องคุลี), even without ejaculating or tearing the victim’s hymen (Supreme Court Judgment 1133/2509). The Supreme Court in 1989 settled the debate and declared that traces of seminal fluid, whether inside or outside the victim’s vagina, could never be used as evidence for or against the occurrence of sexual intercourse between the parties (Supreme Court Judgment 1646/2532). The act of ejaculation, the court reasoned, did not sufficiently signify the accomplishment of sexual intercourse as laypeople understood it. Instead, the court concluded that as long as the defendant penetrated the victim’s vagina, even slightly, the defendant could be guilty of rape. In other words, a rapist would not be found guilty of rape if his sexual organs only made contact with the victim through the use of force; he could only be found guilty of rape if the contact turned into penetration.Footnote ⁵⁰

While the Supreme Court justices relied on graphic details of bodily wounds to guide their legal interpretation, they would paradoxically ignore the medical reports in cases of gang rape or where extreme violence was evident. As we have seen, the wording of section 276 on rape in the 1956 Penal Code allows the court to give due weight to the evidence of coercion rather than engaging in the task of inferring the victim’s will and consent. The focus on physical coercion and violence in rape was also intensified by a minor yet impactful legislative change following the successful military coup of 1971. To legitimize the regime, the junta claimed the purpose of the coup was to protect peace and public order. The regime issued a new decree imposing harsher punishment on gang rape and prohibiting any private settlement between the parties if the rape occurred in public or resulted in serious injuries or the death of the victim (Announcement of the Revolutionary Council No 11, 1971). As the coup leaders sought to establish their legitimacy to rule by disseminating the images of injured and decimated bodies, the Supreme Court corroborated their efforts by tracing the images of gang-raped women who had lost the ability even to resist such atrocity.

After the legislative changes, the number of gang rape prosecutions and appeals surged.Footnote ⁵¹ In these cases, the Supreme Court seemed to forego scrutinizing the wounds on the victim’s body as evidence of the crime but focused instead on narrating the violence that the victim received (see Supreme Court judgment 2770/2515; Supreme Court judgment 527/2518; Supreme Court judgment 2740/2523). The violent event of gang rape is described by the court as effectively “incapacitating the woman to resist” (Supreme Court judgment 2770/2515; Supreme Court judgment 3863/2533). The legal term “incapacitating the woman to resist” was also used in a case where the victim was intoxicated and lost the ability to resist (Supreme Court judgment 2382/2522). In the cases of gang rape, the females were portrayed as the victims of extreme male violence that totally rendered physical and mental resistance impossible. To construct the female subjects as the victim of violence, the court narrated in detail the events that transpired, such as the place of the occurrence and the number of rapists involved. The court also provided the socio-economic backgrounds of both the victim and the rapists to further demonstrate the violence of the attack, such as the age gap between the victim and the rapists (Supreme Court judgment 2770/2515).Footnote ⁵² Even without referring to the medical reports, the court maintained the construction of women as voiceless victims of violence. This image of the thoroughly terrorized victims recalls the image of village women, imagined by the RRPC to legitimize their claim to overwrite the women’s autonomy. Similarly, the court’s visualization of the gang-raped victims, and the corresponding image of the rampant gang rapists as violent and dangerous criminals, also authorizes the claim of the state to rule. The atmosphere of criminality built on these images justifies and legitimatizes not only the need for harsher punishment but also for a stronger state, established by the coup, to protect peace and public order.

Unlike the experimental period after enactment of the 1908 Penal Code, the period following the drafting and implementation of the 1956 Penal Code made evident a set of new legal techniques and, thus, a new conceptualization of rape. By 1956, the Thai nation-state had taken a concrete form and jurists assumed the role of servants of the state. These factors contributed directly to the changing legal techniques used by both legal drafters and judges. The RRPC incorporated old casuistry techniques that had been practised since the era of the 1908 Code into a new imagining of the Thai nation-state, populated with people of various races, roles, and occupations. This resulted in a form of law-making that was textually positivistic yet visually nationalistic. Consequently, the new female subjects of the crime of rape were interpellated based on the urban-rural discriminatory divide. Similarly, the judges also exploited the availability and credibility of medical reports to visualize, fantasize, and speculate on the occurrence of rape. They also depended on the graphic descriptions produced in the reports to aid the legal interpretation of texts and doctrines of rape. The new female subjects constructed by these techniques were the voiceless female victims whose injured bodies became a scene of violent violation. Finally, in the legislative amendment enacted under the junta in 1971, female subjects of gang rape were simply assumed to have injured or deceased bodies. Many legal cases during that time did not delve into the subtleties of legal doctrine or statutory interpretation, and instead quickly ruled that the violence inflicted on female bodies was rape. All in all, this montage presents a different set of legal techniques that constructed and utilized images to animate the crime of rape, effectively erasing the agency, the voices, and the stories of the female subjects. These subjects, in return, were used to legitimize the legal drafters’ nationalism, the court’s pseudo-science sexual fantasy, and finally the authoritarian state’s violence.