Sexual Intercourse Under Section 277: Oral and Anal Acts คำพิพากษาฎีกาที่ 6336/2557: การใช้ปากและทวารหนักกระทำต่ออวัยวะเพศของเด็ก ถือเป็นการใช้สิ่งอื่นใดกระทำกับอวัยวะเพศตามมาตรา 277 วรรคสอง ที่ใช้บังคับอยู่ในขณะนั้น จึงเป็นความผิดฐานกระทำชำเรา มิใช่เพียงกระทำอนาจารตามมาตรา 279

SUPREME COURT DECISION No. 6336/2557
Year: 2014 (B.E. 2557)
Relevant Code Sections: Criminal, Section(s) 277, 279

SUMMARY
The defendant committed oral and other sexual acts on a boy aged just over twelve. The Court of First Instance convicted him of sexual intercourse with a child under thirteen under Section 277 paragraph 3, fourteen years, and of taking a child under fifteen from its parents for an indecent purpose under Section 317 paragraph 3, six years, twenty years in all. The Court of Appeal Region 1 reduced the first count to an indecent act under Section 279 paragraph 1, giving nine years in all. The Supreme Court held that the conduct fell within the definition of sexual intercourse in Section 277 paragraph 2 and restored the twenty year sentence imposed at first instance.

FACTS OF THE CASE
The defendant committed oral and other sexual acts on a boy aged just over twelve, and had taken the child away from those responsible for him.

COURT'S HOLDING
Oral contact with a child's genitals, followed by insertion of the child's genitals into the offender's body, amounts to using any other thing on the genitals within the meaning of Penal Code Section 277 paragraph 2 as it then stood. The conduct is therefore sexual intercourse for the purposes of that section and not merely an indecent act under Section 279. The Court of Appeal Region 1 had reduced the conviction to indecency; the Supreme Court disagreed, allowed the appeals of the prosecution and the joined plaintiff, and restored the judgment of the Court of First Instance.

LEGAL ANALYSIS
The question was one of statutory definition rather than of evidence. Section 277 paragraph 2, in the form applicable to this case, extended sexual intercourse beyond its ordinary meaning to include using any other thing on the genitals of the victim. The Court applied that wording to the acts proved and concluded that they satisfied it, which took the case out of Section 279 and into Section 277.

The practical significance is the sentencing gap that turns on the classification. The same facts drew fourteen years as sexual intercourse with a child under thirteen and three years as an indecent act with a child under fifteen, so the definitional point decided the greater part of the sentence.

On the evidence the Court relied on the absence of any prior acquaintance between the child and the defendant, the consistency of the accounts, and the improbability that a boy of that age would invent an allegation of this kind against another male.

Note on currency: Section 277 has since been amended and the definition of sexual intercourse has been rewritten. This decision states the law as it applied to conduct in 2557 and should be checked against the current text before it is relied on.

PRACTICAL IMPLICATIONS
Cite this holding by the provision in force today, not by the paragraph number the judgment uses. The Court held that the oral and anal acts alleged were the use of any other thing on the genitals within Section 277 paragraph two as it then stood, so the conduct was sexual intercourse for the purposes of the section and not merely an indecent act under Section 279. That definition is no longer in Section 277 paragraph two: after the 2019 amendment it sits in Section 1(18) in substantially the same words, while paragraph two now sets the penalty where the child is under thirteen. A reader who takes 'Section 277 paragraph two' from this decision to the current Code therefore lands on a different rule. Consent played no part here, the victim being twelve.

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Note: This is an English-language summary of the Thai original judgment.
For the authoritative Thai text, please refer to the Thai version above
or visit deka.supremecourt.or.th.