The Rape Offense: A Study of the Element of Crime

Abstract

The objectives of this research are (1) to study of development of the element of Rape Offence in Thai Penal Code (2) to study the element of Rape Offence in English Law (3) to compare the element of Rape Offence both Thailand and English Law and (4) to integrate this research into Criminal Law: Specific Offenses and Special Topic on Criminal Law courses.
The results of this research found that (1) the definition “Penetrate” in Penal Code Section 1 (18) tends to limit the nature of the action that a woman can do for penetrating another person (2) The problem occurred when person who commits an offence by penetrating to the vagina or anus of another person with a part of his or her body or anything else constitutes Sexual Assault Offence (Section 278 paragraph 2), not Rape Offence (Section 276). Although to offences have equal penalty, the former seems to be lighter than the latter. (3) Sexual Offences Act 2003 Section 1 “Rape” has the element of crime called Mens Rea that is, the person who commits an offence does not reasonably believe that the victim consents. If the offender penetrates the vagina, anus or mouth of another person with his penis and he reasonably believe that the victim consents, he will be lacked of Mens Rea. However section 276 does not provide that element, so it is necessary to bring the mistake of victim consents for considering. Unfortunately, the element of the reason is absent.