Balancing Family Protection and Victims' Rights in Property Offences Between Husband and Wife

Abstract

This academic article seeks to elucidate the principles and rationale underlying the exemption from criminal liability for property offences committed between Husband and Wife as stipulated in Section 71, paragraph one, of the Thai Penal Code. This article also analyses the limitation of this provision and does a comparative study of foreign legal systems to find appropriate identifies for reforming Thai law. This study adopts a qualitative research methodology based on documentary research including the analysis of legislation, judicial decisions and relevant academic literature in Thailand and other jurisdictions. The research is carried out in the conceptual framework of the principles of equality of Husband and Wife and protection of persons in a disadvantaged position in the family. The results show two major defects of Section 71 Paragraph One. First, the provision retains the words “husband” and “wife” which are inconsistent with the development of marriage equality legislation. Second, the provision’s structure creates an automatic exemption from punishment, limiting victims’ access to criminal justice, conflicting with contemporary identifies to protecting victims of domestic violence and economic abuse, and raising concerns about equality. The comparative study also recognizes four identifies followed in foreign jurisdictions, namely exemption from punishment, complaint-based or compoundable offences, state-controlled prosecution and victim-initiated prosecution. The author proposes to substitute the word “spouse” for “husband” and “wife” in Section 71 Paragraph One and to make the exemption from punishment a compoundable offence, as is the case in the German criminal law. Such reform would strike a balance between protection of the family and protection of victims’ rights, and be in line with contemporary social conditions and human rights standards.