GENDER EQUALITY IN RAPE OFFENCE

Abstract

          The offense of rape is an offense that causes harm and culpability, irrespective of the gender of the perpetrator or the victim. Therefore, rape is intended to be a universally applicable offense, not restricted to a particular group of individuals based on their gender. However, the rape offense was modified by the Penal Code Amendment Act (No. 27) B.E. 2562 (2019). This amendment eliminated the previous definition of sexual intercourse found in Section 276, paragraph two (formerly), and relocated it to Section 1(18), which is the section containing definitions of terms used in the general provisions. The revised definition of sexual intercourse, as per the law, no longer includes the term "Force to penetrate." Instead, it substitutes the phrase from “Act with” to "Penetrate" and omits the part regarding " or using any object to act with the genitals or anus of another person" without providing any reference to artificial genitals under the law. Consequently, the offense of rape has been transformed into an offense where only individuals who possess male biological attributes can be considered perpetrators, utilizing male genitalia for the act and female birth genitalia as the target of the offense.

          Based on a documentary research examining the principles of criminal law pertaining to rape offenses in England and Wales, India, Sweden, and Canada, as well as an examination of the principles encompassing Nullum crimen sine lege certa, the preservation of Human Dignity, Gender Equality, and the principle of Fair Labelling, the findings of this study suggest that the existing offense of rape should be further amended by encompass the inclusion of the term "Force to penetrate" within the legal definition of sexual intercourse and provide a precise definition of the term "genitals" as the subject and the object of the act to includes "Artificial genitals that have undergone gender reassignment surgery using medical technology" by enacting the definition of general provisions in the Penal Code.