This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

Thai Criminal Law: A Very Brief Introduction

Ronnakorn Bunmee1

Chapter 12

Selected Offences against Life and Body

Terminology
Before explaining the scope of the offences, the meaning of terms which shall be
used throughout this article will be discussed. First, homicide is not a synonym of offences
against life as the term homicide itself is an innocent term implying no offence. There are
many acts, such as carrying out capital punishment (section 19) or killing in self-defence,
which are legal and constitute no crime. Additionally, there are many homicide offences
not listed in title 10 of the Penal Code (offences against life), such as robbery causing death
(section 339 paragraph 5), or which are even beyond the scope of the Penal Code, such as
drunk driving causing death (section 43(2) in conjunction with section 163 tri, the Land Traffic
Act BE. 522). Therefore, I will use the term ‘offences against life’ when referring to title 10
and the term homicide offences or criminal homicide when referring to any offences causing
death.
Secondly, in the UK (and, of course, other countries in the common law system)
there are offences called murder and manslaughter (or, in Scottish and Singaporean law,
culpable homicide). The meanings of these two terms vary from jurisdiction to jurisdiction2
and can somewhat cause confusion to Thai lawyers trying to compare those terms to Thai
law. This might be because, firstly, the UK’s internal element for murder could be either an

1Assistant Professor at Faculty of Law, Thammasat University. LLB (Hons) TU, Thai Barrister-at-Law, LLM (Criminal Law) TU,
LLM with Merit (Human Rights Law) LSE (Chevening Scholarships), LLD TU, PhD Candidate NUS.
2 For example, in the US, murder is further divided in some states into degrees (Pennsylvania Model). For more detail

please see Joshua Dressler, Understanding Criminal Law (LexisNexis 2009) p.511.
1
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

intention to kill or an intention to cause grievous bodily harm (GBH)3. Unlike Thai law,
section 288 read in conjunction with section 59 requires the actor to have the intention to
kill only. If the defendant acts with the intention to cause GBH, even if the victim dies, the
defendant will be found guilty of section 290 with the ‘maximum’ penalty of 15-years
imprisonment, rather than of section 288 which has a ‘minimum’ penalty of 15-years
imprisonment. Moreover, and more confusing perhaps, manslaughter is divided into two
large categories; voluntary manslaughter and involuntary manslaughter. The first category,
considerably changed4 by the Coroners and Justice Act 20095, is essentially murder but the
defendant has specific partial defences which could be ‘loss of control’, ‘diminished
responsibility’, and ‘acting in a suicide pact’. Therefore, comparing to Thai law, voluntary
manslaughter of section 288 is like the UK offence of murder, and, even though some
defences might mitigate the severity of punishment, they cannot reduce the degree of the
label attached with the offence of murder. Section 288 of the Thai Penal Code is both
narrower and broader than the UK murder statute. One might prefer to use the term
‘intentional killing’ when referring to section 288 and I support this position because of two
reasons; first to avoid misunderstanding, and second, the term intentional killing’s meaning
is more in line with the Thai term for this offence (ฆ่าโดยเจตนา). However, I might have used
the term murder in other writings, if that is the case, please understand that I use the word
‘murder’ to refer to section 288.
While voluntary manslaughter is within the context of murder in Thai law, involuntary
manslaughter consists of many offences according to Thai law. An involuntary manslaughter
is an act of killing without intention to kill or cause GBH. The offence can be committed
with either gross negligence or by an unlawful and dangerous act.6 Thus the offence of
involuntary manslaughter could be section 290 (committing the offence of bodily harm
causing death or sometimes called ‘unintentional killing’), section 291 (negligent killing) and

3 Glanville Williams, Textbook of Criminal Law (Dennis J. Baker ed, 3rd edn, Sweet & Maxwell 2012) p.367.
4 For more detail please see John Smith and Brian Hogan, Text, Cases, and Materials on Criminal Law (David Omerod and

Karl Laird ed, 11 edn, OUP 2014) Chaps 16-17.

5 http://www.legislation.gov.uk/ukpga/2009/25/contents (last visited 14 September 2015).
6 http://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_manslaughter/ (last visited 14 September 2015).

2
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

many other offences which cause death without intention. Because of this complication, I
will not use the term manslaughter in this article when referring to Thai law but will use the
term unintentional killing (ฆ่าโดยไม่เจตนา หรือทาร้ายร่างกายจนเป็นเหตุให้ผู้อื่นถึงแก่ความตาย) and
negligent killing (ฆ่าโดยประมาท หรือกระทาการโดยประมาทเป็นเหตุให้ผู้อื่นถึงแก่ความตาย) when
referring to sections 290 and 291, respectively, instead.
Intentional Killing (section 288)
Regarded as one of the most truly serious crimes, the offence of intentional killing (of
a person) imposes severe punishments ranging from a 15-year imprisonment to capital
punishment. Under Thai law, the offence is quite simple and straightforward; A, a natural
person, kills, by any means, B, another natural person, intentionally. The disputable points
about the offence are actually the evidential issues and judges’ discretionary problems
rather than substantive issues. Judges have to decide whether or not a defendant has an
intention to kill. This chapter will, however, outline some basic substantive matters
regarding the offence of intentional killing.
To commit suicide is not a crime according to Thai law. Therefore; save for the
scenario prescribed by sections 292 and 293, to incite or assist another person in killing
himself is not incitement or assistance to intentional killing (section 288 in conjunction with
section 84 and 86 respectively). However, if one goes beyond just inciting or assisting, he
could be convicted of intentional killing. For instance, D wishes to help V, a paralyzed
friend, in his suicidal act and upon V’s request and consent, D then point a gun at V’s head
and pulls the trigger or administers poison into V’s body. If V dies, D will be guilty of
intentional killing, and even if V does not die, D will also be guilty of attempted intentional
killing.
Both the defendant and the victim of this offence must be a natural person. A
corporation cannot be found guilty of this offence; nevertheless, it could be guilty of
negligent killing (section 291) if it causes someone to die negligently (3446/2537). Moreover,
the victim of this crime must be alive at the time of the commission. It is controversial here
whether or not D shall be guilty of any criminal homicide if he shoots V who has already
died, say of a heart attack, well before the time of the shooting and the death is not known
3
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

to D. Many leading scholars and judges, including Professor Kietkajorn, advance the idea
that D should be found not guilty because, literally speaking, his act lacks one of the main
material elements; ‘another person’. By contrast, other academics championed by
Professor Twekiat, disagree with that position and propose that D should be guilty of
impossible attempted intentional killing (section 288, 81)7.
The most controversial, and perhaps most important point of section 288, is related
to the definition of life. Or to put it simply, when does life begin and end? Why do these
questions matter? Maybe the chart below can provide the answer somewhat.

From the chart, it should be easy to see that the punishments imposed on
terminating life are extremely different from age period to age period. If ending the life of
an unborn child, one can be sentenced to prison for 7 years at most; while killing a person
(which might be the unborn child minutes ago) will be punished with at least a 15-year
imprisonment. The same issue is applicable when considering the question of the end of
human life.
No criminal provision states the beginning of life. However, criminal lawyers tend to
cite section 15 of the Civil and Commercial Code as the law governing this issue. According
to that section, the life of a human begins when the baby wholly extrudes from the body of
the mother and no part of the child, except the umbilical cord8, remains. Moreover, it must
be born alive, which means there must be some signs of life such as a pulse, breathing or
simply making a noise. This use of civil law criteria has been challenged9 by Professors
Kanit10 and Swang11. They argue that the beginning of human life for the purpose of criminal

7 For more detail, please see Twekiat Menakanist, ‘Impossible Attempt’ [2015] 43 Thammasat Law Journal 3, p.
8 จิตติ ติงศภัทิย์, คาอธิบายกฎหมายอาญา ภาค2 ตอน2 และภาค3 (เนติบัณฑิยสภา 2545) หัวข้อ 975.
9 For the debate on this issue in English law’s context, please see, Wayne R LaFave, Criminal Law (West Group 2000)

pp.656-657 and see also Williams pp.423-424.

10 Citation needed

4
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

law is distinct from that of civil law. Based heavily on German criminal law, they propose
that life should gain the status and the protection of criminal homicide as a born human
when the dilation pains begin. Even though their ideas are very interesting, they have
gained little acceptance from other Thai scholars, mainly because of the ambiguous nature
of the labour pain, compared to the clearer line of the whole body extrusion.
Going back to the normal definition of being born alive, even though the criteria
provided by section 15 of the Civil and Commercial Code are more clear, they can render
some moral difficulties when implemented. Consider these two real cases. Firstly,
677/2510: V, a 7-month pregnant woman, was stomped repeatedly in her stomach by D.
Her baby was delivered prematurely and died eight days later as a result of the attack. The
defendant, in this case, was convicted of assault (section 295) rather than aggravated assault,
or more precisely assault causing miscarriage (section 297 (5)). This is due to the fact that if
the child is born alive then there is no miscarriage, even though the child died very shortly
after it was born as a result of the assault, according to the medical evidence. Moreover,
the defendant could not be tried for killing (whether intentional, unintentional or negligent),
because at the time of commission, the child had not yet gained the status protection of a
human. The point is that if the defendant had committed the act earlier or later12, he
would be guilty of abortion (up to a 7-year imprisonment) or at least unintentional killing (up
to a 15-year imprisonment) respectively. However, because he did it at the seventh month
of pregnancy, when the child was strong enough to be born alive but not strong enough to
survive to adulthood, he was not guilty of any crime as the result of the child’s death. The
second case is an English case R v Enoch13. The victim, a child, was deliberately throttled
when only its head was protruding. The court instructed the jury that murder was not
possible as the subject of the case, the child, was not yet a human. It is not clear whether
or not the Thai courts would decide in the same manner as their English counterpart, but it

11 Citation needed
12 Here I consider the fact that the act is also against the child not only against the mother.
13 R v Enoch R v Enoch (1833) Car & P539

5
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

is very likely.14 The final remark about being born alive is that some signs of life must be
present ‘after’ being wholly expelled from the mother15. It is not enough to prove that the
baby had signs of life while in the process of being born.
Aggravated Intentional Killing (section 289)
Section 289 provides seven ‘aggravated facts’ (เหตุฉกรรจ์). When considering section
289, do not forget to refer to section 59 paragraph 3 (and the similar provision in section 62
paragraph 3), which means that the defendant will be held guilty of an offence imposing
heavier punishment (in this case section 289 compared to the lesser punishment imposed
by section 288) because of certain facts (aggravated facts), which he must have known of.
For instance, a defendant will be held guilty of killing his father only when he knows, at the
time of the commission, that the victim being shot is the defendant’s father; otherwise, he
will be guilty of section 288 imposing a lesser punishment. The aggravated facts provided in
this section impose heavier punishment to the offence of unintentional killing (section 290),
assault (section 295) and assault causing GBH (section 297) and make the defendant guilty of
aggravated unintentional killing (section 290 paragraph 2), aggravated assault (section 296), or
aggravated assault causing GBH (298) respectively. The seven aggravated facts are discussed
briefly below in order.
(1) Killing of an ancestor
The term ancestor (บุพการี) in this subsection covers only biological parents,
grandparents16, great-grandparents and so on. Therefore, killing of stepparents,
adoptive parents or collateral relatives such as an uncle, aunt, or sibling is not
considered as the killing of an ancestor rendering heavier punishment. A putative

14 ทวีเกียรติ มีนะกนิษฐ, คาอธิบายกฎหมายอาญา ภาคความผิดและลหุโทษ (วิญญูชน 2551)

15 ติงศภัทิย์ หัวข้อ 976 and R v. Poulton R v Poulton (1832) 5C & P 329
16 76/2542

6
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

father17 (de facto but not de jure father), in contrast, is protected by this
subsection18.
Only the descendant of the ancestor will be sentenced to a heavier
punishment, even though many people may have acted in concert. For example, A
conspires with B to kill C, A’s grandmother and they eventually go on to kill C. Only
A will be held liable of section 289 (1) as the victim is his ancestor, while, B will not
be held responsible of such subsection as the victim is not his ancestor. However, as
this case is a premeditated killing, both of the defendants will also be guilty of
section 289 (4) which imposes the same punishment as section 289 (1)

(2) Killing of an official

Since 13 February 2015 section 1 (16)19 has provided the definition of ‘official’
as follow: “ ’Official’ means a person stated in law20 as an official or a person being
conferred by law to exercise a public function, either permanently or temporarily,
and regardless of receiving wages”. A defendant will be found guilty of section 289
(2) when the official is killed either in the execution of his duty (on duty) regardless
of the defendant’s motive (398/2498) or; outside the exercise of his duty (off duty)
but the defendant does so because the official has exercised his duty (in the past)
(176/2543), or is going to exercise his duty (in the future) (312/2491). Also, the
defendant will be found guilty of this subsection only when he knows this
aggravated fact at the time of the commission (section 59 paragraph 3 and section 62
paragraph 3).
The execution of duty must be in line with the law; thus, if the official
‘unlawfully’ exercises his duty and is killed because of the act, the killer will not be
found guilty of this subsection. In 719/2501, two police officers went to the

17 1384/2516: Criminal Procedure Code issues

18 What about surrogate parents? (donor/host)
19 Please see http://www.ratchakitcha.soc.go.th/DATA/PDF/2558/A/010/43.PDF
20 For example, Agricultural and Land Reform Act B.E. 2518 S.24 and Working of Aliens Act B.E.2521 S.32 (repealed).

7
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

defendant’s house to search and arrest the defendant without a warrant, at night,
which was against the Constitution and the Criminal Procedure Code sections 91 and
96. The defendant’s resistance against that unlawful search and arrest was not in
contrary of sections 138 and 295 of the Penal Code. Looking into this decision a bit
deeper, one will see that actually there are two different reasons why the defendant
is acquitted. Firstly, on the grounds that the police officers did not execute their
duty legally (which means that the officers did not execute their duty at all),
therefore, it lacks of a material element of section 138 (and also of section 289 (2))
which is ‘in the execution of his duty’. Secondly, the reason why the defendant is
found not guilty of section 295 (assault) is because when the execution of official
duty against the defendant is done ‘illegally’, it means that the defendant is
unlawfully harmed, and to avoid the harm the law gives permission to him to
commit any acts deemed necessary against the violator; this is what we call ‘self-
defense’ (section 68). Therefore, even though his act (assaulting the police officers)
satisfies every element of section 295, he is not guilty of the offence as he has the
power (or justification) to do so.
The victim must be an officer, whether or not being on-duty. If the victim has
already retired or resigned and is killed because of an act he did in the past, the
defendant cannot be found guilty of this subsection21. The last point to consider is
that if someone kills an officer when he is off-duty, and the motivation for the killing
is not related to the execution of duty that the officer has done in the past or is
going to do in the future, the killer will not be found guilty of this subsection22.

(3) Killing of a person assisting an officer

To be guilty of this subsection, at the time of the killing there must be an
officer executing his duty and the victim is assisting the officer in the execution. If the
officer is ‘going to exercise’ his duty (on his way) but asks the assisting person to be

21 ติงศภัทิย์ หัวข้อ 1003

22 3090/2527

8
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

at the crime scene before the officer, but both of them are killed, then the act of
killing the officer will constitute an offence of section 289 (2), however, the killing of
the assisting person will be an offence of section 288 rather than section 289 (3). In
contrast, if the officer is on the crime scene and executing his duty, say search and
seizure, and asks the assisting person to come from his home to help, and both of
them are killed, the criminal conduct will be contrary to both section 289 (2) and
section 289 (3). Comparing this subsection to section 138, one will see that the
stronger term is used in section 138. Whereas, in the case of section 138, the
assistance must be ‘required by law’, the assistance in section 289 (3) could be
voluntary. To arrest a suspect, an officer has the power ‘to require’ assistance of a
common person only when he has an arrest warrant23. Otherwise, the requested
person is not bound by law to provide any assistance. In 2228/2515, a police officer
had been in hot pursuit to make an arrest, but without an arrest warrant, and the
officer asked V, a normal person, to assist him. V agreed to help but eventually was
shot and injured by the defendant. The Supreme Court decided that the defendant
was guilty of attempted killing of a person assisting an officer (section 289 (3), 80) but
not of section 138 because V was not required by law to help the officer executing
his duty.

(4) Premeditated killing (ฆ่าโดยไตร่ตรองไว้ก่อน)

This subsection requires that the defendant must have thought about the
killing beforehand. It need not be a long period of time; just ‘a brief moment of
thought’24 would suffice if the defendant has a chance to review his thought, despite
briefly, and still acts. However, it must not be a spur-of-the-moment killing.
Following this line of thought, in my view, the majority of killing cases will fall into
this subsection.

23 The Criminal Procedure Code, section 82. If the requested person refuses to assist the officer without a justifiable

reason, that person will be found guilty of section 368.

24 Government of Virgin Islands v Lake (1966) 362 F.2d.

9
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

(5) Tortuous or cruel killing

Even though there are two separate words, tortuous and cruel, the Supreme
Court frequently treats them as if they refer to the same act. However, it has been
argued that these two words should be interpreted independently, with which I
agree. To kill in a tortuous manner is to inflict severe or prolonged pain ‘on the
victim’ before death. To soak the victim with gasoline and set him on fire25 is an
infamous example of killing with an act of torture. Whereas, the act of torture
focuses on the victim’s agony, the act of cruelty will pay attention to the feelings of
reasonable people toward the killing. In 1101/2509, the defendant cut the throat of
a 5-year-old child, trampled and suffocated another child who was just 8 months old
to death and also administrated poison the children’s mother. Except for the case
of suffocation, the victims did not suffer severe pain before dying; therefore these
killing are not tortuous. However, they do appear cruel to other people in society.
As aforementioned, the Supreme Court, in some cases, interprets the word
‘torture’ as including the word ‘cruelty’. Hence, to stab someone 30 times to
death26 is considered as an offence of section 288 rather than section 289 (5). This is
because the death comes in an instant, there exists no severe or prolonged suffering
before dying. Thus it does not amount to an act of torture. Nonetheless, although it
is not a tortuous act, it is a cruel act and constitutes an offence of section 289 (5)27.
The act of torture or cruelty, furthermore, must be done before the victim
dies. If the defendant does any cruel or ill act ‘after’ the victim dies, it will be other
offences (such as 19 or 358).

(6) Killing for the purpose of preparing for or facilitating in the commission of other
offences

25 449/2536
26 1614/2513
27 มีนะกนิษฐ, p.226.

10
This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

Unlike the following subsection, the killing falling under this subsection has
taken place ‘before’ committing other offences, which could be another killing or
another completely different type of offence, such as robbery or rape. The
defendants in 619/2513, who killed a man to gang rape his friend, were convicted of
section 289 (6) and sentenced to 10-year imprisonments (the defendants, in this
case, were minors at the time of commission, and they also pled guilty).
The motivation for killing in this subsection is to prepare for or facilitate the
commission of another crime. If the defendant kills the victim without any special
motivation, however, after the killing he then has the intention to steal the victim’s
property and take the property with him, the defendant will be guilty of section 288
and section 334 rather than section 289 (6) and section 339 which imposes a way
more severe punishment.

(7) Killing for the purpose of taking or securing the benefit obtained from the
commission of any previous offences committed by the defendant, concealing
any other offences committed by the defendant, or escaping from a criminal
penalty emanating from a previous criminal act committed by the defendant.

There are four possibilities falling into this subsection. All of them are killing
‘after’ the defendant has previously committed another offence. Therefore, there
are at least two differences from the previous subsections. First, the sequence of
killing; in this subsection the killing must take place after the defendant himself has
already committed another offence, while the defendant in subsection (6) kills
before other crimes are going to happen. Second, the other offences committed in
subsection (7) must be done by the defendant himself, i.e. the killer. However, the
defendant, according to subsection (6), might commit the other offences by himself,
or the other offences might be committed by other people, who do not necessarily
know of the killing. The four possibilities are as follow:
(1) Killing for the purpose of ‘taking’ the benefit obtained from the
commission of any previous offences committed by the defendant.
11
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

(2) Killing for the purpose of ‘securing’ the benefit obtained from the
commission of any previous offences committed by the defendant.
(3) Killing for the purpose of ‘concealing’ any previous offences committed
by the defendant.
(4) Killing for the purpose of ‘escaping’ from a criminal penalty emanating
from any previous offences committed by the defendant.

Abortion
Beginning of pregnancy
Even though an unborn child is, in terms of the law, not a human yet, it has far
better protection compared to an ovum or gamete because Thai law protects the life of an
unborn child by the offence of abortion. In order to constitute abortion, there must be a
pregnancy, i.e. conception28. However, it has not been made clear what the meaning of
pregnancy/conception is; is it fertilization or implantation?29 No legal or even medical
definition is provided by Thai authorities30.
Fertilization v Implantation

28 Impossible attempt issue (further explanation needed)

29 For more detail, in Thai context, please see ทวีเกียรติ มีนะกนิษฐ, “ปัญหาการให้กาเนิดและทาแท้ง” (2538) 25 วารสารนิติศาสตร์ 2,

p.273.
30 In many countries, it has been accepted that pregnancy starts from implantation. See for example;

• German Penal Code S.218 (1): “…Acts the effects of which occur before the conclusion of the implantation shall
not be deemed to be an abortion within the meaning of this law.”
• New Zealand’s Crimes Act 1961 S.182A (a): “…the term miscarriage means (a) the destruction or death of an
embryo or fetus after implantation…”
(http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329353.html (last visited 16/9/2015))
• England: Smeaton v Secretary of State for Health [2002] EWHC 610 (Admin) 17: “… the word “miscarriage” today
means the termination of an established pregnancy, and there is no established pregnancy prior to implantation.”
(http://www.bailii.org/ew/cases/EWHC/Admin/2002/610.html (last visited 16/9/2015))
12
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

(Credit: http://firsttimepregnancy.org/wp-
content/uploads/2013/04/shutterstock_74773828.jpg)

(Credit:
http://intranet.tdmu.edu.ua/data/kafedra/internal/ginecology2/classes_stud/en/nurse/bsn/pt
n/4/Nursing%20Care%20of%20Childbearing%20Family_Practicum/07.%20Conception%20and
%20Fetal%20Development.files/image003.gif)
There are many hot debates here; however, I will pay attention to only two issues;
namely, In Vitro Fertilization (IVF) and contraception. These are the two main reasons
making me argue for implantation as the starting point of pregnancy. In IVF, the woman’s

13
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

egg will be removed from her body to be fertilized by a gamete and then the embryo
(fertilized egg) is returned to the womb. It is quite hard to understand or to think of
abortion as including the act of destroying a fertilized egg which has not been returned to
the woman’s body to be implanted.

IVF (Credit: http://www.thaibiotech.info/what-is-ivf.php)

Furthermore, some contraceptive methods work by stopping fertilized eggs from
being implanted. This includes hormonal birth control methods, including, controversially,
the emergency contraception pill (aka the morning after pill). Even though the main function
of hormonal birth control is to stop the release of an egg; it is ‘believed’, without
concrete/medical evidence, that it also reduces the thickness of endometrium and thus
prevents the implantation. By defining conception as fertilization, many types of
contraception will be contrary to section 301-303, which not only contradicts with normal
practice medically and legally recognized around the world31 but also increases the risk of
‘real’ abortion. Moreover, without implantation, a embryo cannot receive nutrient from the
mother nor can the pregnancy can be medically determined, as the mother’s hormone

31 In some countries, the morning after pill can be bought only with a prescription; however, in Thailand it is available

legally in almost every pharmacy.

14
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

level changes after the implantation. These reasons should by themselves convince you
that implantation is more appropriate in terms of the law to be the starting point of
pregnancy.
Substantive Offences of and Special Justification for Abortion
There are three abortion offences: first, the woman commits the abortion herself or
gives consent to someone else to perform an abortion on her (section 301); secondly,
another person performs the abortion on the woman with her consent (section 302); lastly,
and the most heinous category, another person performs the abortion on the woman
without her consent (section 303). In the cases of sections 302 and 303, if the pregnant
woman is seriously injured, according to section 297 (except for section 297 (5) which is
always the direct consequence of abortion), or died as a result of the abortion, the
defendant will be sentenced to heavier punishment, provided that the serious injury or
death are ‘ordinary consequence’ according to section 63.
What makes abortion offences distinct from other offences in the Penal Code, save
for the defamation offence, is that abortion has a special justification, provided in section
305. The abortion justification is essentially based on the doctrine of necessity32. There are
three components of the justification which are

(1) It must be done with the consent of the woman.

This is because section 305 could justify only the acts of sections 301 and 302.
Without the woman’s consent, even though the defendant has an extremely good
and plausible reason, the defendant cannot argue using section 305 to justify his

32 Actually, to some extent, this sentence does not make much sense, for almost every, if not all, justifications provided by

law, are based on the doctrine of necessity. For more information please see รณกรณ์ บุญมี, การฆ่าเพือ่ รักษาชีวิต, วิทยานิพนธ์
ระดับดุษฎีบัณฑิต คณะนิติศาสตร์ มหาวิทยาลัยธรรมศาสตร์, 2556, บทที่ 2.
15
This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

actions. For instance, the pregnant woman is unconscious and, for medical reasons,
she needs immediate treatment, including abortion, otherwise the doctor cannot
save her life. If the doctor chooses to do that intentionally and fully aware that his
actions will lead to abortion without consent, he will be guilty of section 303 and
cannot claim that he acts with section 305 justification because the woman does not
give consent. Nor can he claim that he acted in self-defence (or to be more precise,
acted in defence of another) according to section 68, as the woman does not cause
an unlawful harm.

(2) It must be done by a doctor. Even though, in Thai, the word doctor here is
นายแพทย์ which could be interpreted to refer only to a male doctor, it is widely and
unanimously accepted that the word นายแพทย์, as used here, is gender neutral.
Moreover, it does not require being a specialized doctor, as long as he or she is
holding a license to practice medicine (ใบประกอบโรคศิลป์) it is enough for he or she to
be a doctor according to this section. Therefore, if the pregnant woman is herself a
doctor, she can commit abortion with justification, provided the last criterion is
satisfied.

(3) The abortion is a lesser evil compared to forcing the woman to remain
pregnant. This last component can be explained by considering that, even though
the life of an unborn child is a value held dear by society and society wishes to
protect the unborn, and therefore normally a termination of the life of an unborn
child will be punished; in some circumstances, the life of an unborn child must give
way to a greater value. According to section 305, there are two possible causes that
can justify abortion.

a. The abortion is necessary because of the pregnant women’s health. The

word ‘health’ here could be mental or/and physical and need not be
fatal.

16
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

b. The abortion is necessary because the pregnancy is the result of a

violation of certain sexual offences33, such as rape (ข่มขืนกระทาชาเรา) and
statutory rape (or child rape กระทาชาเราเด็ก).

Besides the Penal Code, the Medical Council has provided the Regulation on the
Medical Termination of Pregnancy according to section 305 of the Penal Code 200534, which
is not in itself the ‘law’. Therefore if a doctor does an abortion in accordance with the
Penal Code, section 305, he will not be guilty of any criminal offences; however, the
abortion might constitute a medical disciplinary violation. The regulation is, in principle,
similar to section 305; however, it provides a little more detail about the procedure. The
important points are;
(1) In case of mental health, there must be at least one doctor, who is not the
doctor performing the abortion, confirming that the pregnant woman has a
mental health problem.
(2) The mental health problem includes the severe stress as a consequence of being
diagnosed and informed by a doctor, who is not the doctor performing the
abortion, that the unborn child has a serious disability or serious genetic disorder
or has a high potential to have those.
(3) In case of pregnancy as a result of the illegal sexual act, there must be
reasonable evidence of the illegal act.
(4) The abortion must take place in a specific type of medical centre.
(5) The doctor performing the abortion must report it to the Medical Council within
the time frame provided by the Medical Council

33 Please always bear in mind that to be justifiable the pregnant woman must give consent to the abortion, therefore the

pregnancy is unwanted by the woman. In this sense, we have to balance between the life of an unborn child and the
quality of life of the victim of an illegal sexual act. Forcing a woman to suffer the unwanted pregnancy, which is the result
of a sexual violation or exploitation, and to risk ruining her life could be as bad, if not worse, as being victimized by the
unlawful sexual act itself.
34 http://www.tmc.or.th/service_law02_16.php (last visited on 16/9/2015).

17
 This is a draft, please do not circulate. For LLB@TLS 2019. Updated on 22 June 2019.

R v Enoch R v Enoch (1833) Car & P539

R v. Poulton R v Poulton (1832) 5C & P 329
Dressler J, Understanding Criminal Law (LexisNexis 2009)
Hogan JSaB, Text, Cases, and Materials on Criminal Law (Laird DOaK ed, 11 edn, OUP 2014)
LaFave WR, Criminal Law (West Group 2000)
Williams G, Textbook of Criminal Law (Baker DJ ed, 3rd edn, Sweet & Maxwell 2012)
ติงศภัทิย์ จ, คาอธิบายกฎหมายอาญา ภาค2 ตอน2 และภาค3 (เนติบัณฑิยสภา 2545)
มีนะกนิษฐ ท, คาอธิบายกฎหมายอาญา ภาคความผิดและลหุโทษ (วิญญูชน 2551)

18