Consensual sex happens when each partner willingly chooses to participate but the law in our country does not recognise the sexual consent between an adult and a minor.
Today, such cases are erroneously termed as rape and the adult who is convicted is termed as rapist.
Consensual sex between minors is accepted by the law but same minor having sexual relationship with an adult, with the consent of both parties is not accepted by the law.
The law sentences the minor in conflict with a minimum of half of the sentence prescribed for the offence but in reality, no minor is convicted for such crime.
Presently, the law seems to favour women only and men are behind the bar because of this unfair law. The law claims to protect minors but the law fails to protect those infants who are the product of consensual sex.
These points are discussed in detail to make the people of our country aware of the biased law and to request our policy makers to ensure justice to all.
Today, 135 men are convicted for having consensual sex with minor. The crime that they have committed is termed as “rape” and the person who is convicted for such crime is termed as “rapist”.
However, if defendants have had consensual sex with minor, it should be termed as statutory rape rather than rape and the term rapist sounds discriminatory for those who are involved in sexual relation with consent.
Thus, if there is consent, then our policymakers and those who implement the law should be mindful enough to use the correct term for the crime.
In the law, the consensual sex between children of sixteen years and above is not considered as rape but the consent of the same minor while having sex with an adult is not considered by the law. As stated in the Penal Code of Bhutan (2011), Section 183: “A defendant shall be guilty of the offence of rape of a child above the age of twelve years if the defendant commits any act of sexual intercourse against a child between the ages of twelve to eighteen years. However, consensual sex between children of sixteen years and above shall not be deemed to be rape.”
The last sentence of the above mentioned section respects the consent of minors but those minors can even have same consent with adults. If the law can respect consent between minors, then the law should also respect consent between a minor and an adult.
Most of those minor who are regarded as the victim of consensual sex are between the ages of 12 to 18 years but in such cases, the person who is convicted becomes the victim of the law.
Some people who are convicted for such crime are even imprisoned more than the felony that is mentioned in the Penal Code of Bhutan. According to the Penal Code of Bhutan (2011), Section 115, which states: “If the defendant is a child ofabove 12 years, the court shall sentence the child in conflict with the law to a minimum of half of the sentence prescribed for the offence”.
This section of the Penal Code is ignored by the judiciary because till now minors are not convicted for having consensual sex with an adult. So, if we examine carefully, those men who are convicted are the victim because the law has failed to punish those minors even when they have committed a crime.
Does this mean that the law implies to adults only, or the law itself is bias and favors women?
According to The Constitution of the Kingdom of Bhutan, Article 7, Section 15: “All persons are equal before the law and are entitled to equal and effective protection of the law and shall not be discriminated against on the grounds of race, sex, language, religion, politics or other status”.
Even though Bhutan claims to be a gender equal country but the law of Bhutan is biased and men have become the victim of this law. There is a clear contradiction in law and the actual conviction itself.
The law might claim to protect minors but in some cases those minors have given birth to children and those children are deprived of their fathers’ love and care.
Is the government providing an extra facility and care to those infants who are born out of consensual sex between an adult and minor? Even those minors are not living a fruitful life when the father of their child is in the prison.
Thus, consensual sex should not be regarded as a crime because even if the law claims to protect those minors, the law fails to protect those infants who are the product of consensual sex.
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Therefore, I would like to request our policymakers and those who implement the law to ensure justice to all by not considering consensual sex as a crime.
Contributed by Monika Sharma