Consensual sex provision to be revisited

National Assembly’s legislative committee is reviewing the penal code

Legislation: National Assembly’s legislative committee will table the Penal Code of Bhutan 2011 and the Civil and Criminal Procedure Code of Bhutan 2011 for amendment in the winter session of the Parliament.

The Supreme Court has also indicated amendment of several provisions in both the codes. This includes four sections in the penal code and one in the Civil and Criminal Procedure Code.

Legislative committee chairman Lekey Dorji said the committee is reviewing the penal code “holistically” besides the recommended clauses. “We need more time which is why it will be tabled during the winter session,” he said.

The legislative committee met with Supreme Court judges and police. More consultative meetings will follow.

Consensual sex

Section 183 of the Penal Code states that a defendant shall be guilty of the offence of rape of a child above the age of 12 years if the defendant commits any act of sexual intercourse against a child between the ages of 12 to 18 years. However, consensual sex between children of 16 years and above shall not be deemed to be rape.  Section 184 states that the offence of rape of a child above the age of 12  years shall be a felony of the second degree.

The issue of consensual sex and the age of consent has come up again since its amendment in 2011.

In 2013, lawyers from Office of the Attorney General (OAG) appealed to the Supreme Court seeking its interpretation on the provision of “consensual sex” between a minor of 16 years and those above it.

In 2014, people of Dagana submitted a proposal to the assembly to amend the provisions on rape in the penal code in the interest of the public. Sarpang dzongkhag court last December directed the OAG to move the motion on a specific age of consent. The directives were reflected in the verdict when the court sentenced two men to nine years in prison on December 25 for the crime of rape of a minor although the victims had submitted that it was consensual and not rape.

Lekey Dorji said that a person below 18 is considered a minor in all the laws including the convention of the rights of the child that Bhutan is signatory to.

“Even as per the property laws, a person below 18 is not allowed to give consent or own properties,” he said. “People always plead that its consensual sex but a minor cannot give consent.”

Lekey Dorji agreed that there were issues and hence the need to take a holistic view. “Although Parliament frames the laws, it’s the judiciary that implements, so we’ve to be mindful of all factors,” he said.

Lekey Dorji said that they are also reviewing if the age of consent for girls can be reduced to 16 from 18 or reduce the offense from a second-degree felony to misdemeanor although such possibilities are bleak.

“Reducing the age of consent for girls and keeping the same for boys is discriminatory while reducing the sentence might seem insensible,” he said.

Similarly, the assembly’s women, children and youth committee has been mandated to review the Child Care Protection Act and the Marriage Act simultaneously.

Other sections

The other sections of the penal code is section 39 on compensatory damage which states that if the court determines that compensatory damages are appropriate, a defendant convicted of a crime shall pay appropriate compensatory damages at the rate of the minimum wage at the time of the crime for 10 years to the surviving spouse or next of kin.

Compensation also incudes the cost for forty-nine days for seven people towards the expenses incurred in the funeral rites of the deceased victim, if the crime has resulted in the death of the victim.

If the crime has caused permanent disability, a minimum of 10 years compensation based on the daily minimum wage, seven years for permanent partial disability, five years for temporary total disability shall be paid.

Section 107 of the Civil and Criminal Procedure Code, which will be revisited states that finding of civil contempt shall result in fine/imprisonment until the civil order has been complied with. However, for monetary case the person shall be imprisoned for a number of years calculated based on value based sentencing.

Views

Chief of police Brigadier Kipchu Namgyal said there is no need to amend the penal code as it has been sufficiently amended with enough relaxation.

“If we were to make it more lenient, it would mean promoting sex among children. This would have a larger social implication like teenage pregnancies,” he said. “We can’t have a soft corner and relax adolescence sex, which is not right in our society.”

Brigadier Kipchu Namgyal said that the law presumes children aged 18 and below as not matured enough to take the right decisions. “Awareness in schools is more important as most of the cases involve school going children,” he said.

Health ministry’s public health department’s director Dr Pandup Tshering said that to amend the age of consent, a detailed study is required to know the social or other impacts before amending the penal code.

“From health’s point of view, people below 18 are physically and psychologically not able to make proper decisions,” Dr Pandup Tshering said. “This could result in unsafe sex, teenage pregnancies and HIV and STDs.”

Meanwhile, the legislative committee is also studying detention related issues such as the rights of people who are detained for investigation or interrogation.

Lekey Dorji said that when people are detained, they are not aware of their rights or granted their rights such as the right to remain silent, the right to a lawyer, among others.

“The persons should be informed of the certain rights, which is not the case currently depriving them of their fundamental and human rights in line with the Constitution,” he said.

Lekey Dorji also said that the committee is open to discussions and encouraged people from all walks of life who have had issues to either visit them or write to them.

Kinga Dema

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