We all live under the rule of law. The purpose simply is that our rights are protected and other’s respected. Sometimes the best law vetted through a rigid process of legislation could leave room for improvement when it is implemented on the ground.
The consensual sex provision in the penal code is fast becoming a bone of contention between legislators and judges. The National Assembly, when presented an opportunity to correct the provision, refused to do so. Those dealing with it, in letter and spirit of the law, say that there is something that is not right.
The latest came from Sarpang when two young men were convicted to nine years in prison for having physical relation with their girlfriends. The girls were minor according to the penal code because the age of consent – the legally defined age at which a person is no longer required to obtain parental consent to get married – is between 16 and 18. In one case, the girl even pleaded the court to punish her and not her boyfriend.
The court was left with no choice because the legislature didn’t change it and higher courts haven’t interpreted it otherwise. This is where the problem lies. In the meantime, we are locking up young men, some fathers, while their young wives are left to fend for themselves.
The Sarpang court is not alone in voicing the need to amend the law. Drangpons have in the past expressed similar concerns. In dispensing justice, it seems drangpons themselves feel that they are not doing justice. Sometimes young mothers carrying their baby come to courts requesting release of father convicted of rape. They come to media to share their plight hoping for change in the verdict.
If the law is a problem and is not serving the purpose, it needs to be looked into again. The purpose of justice is punishing the criminal and protecting the innocent. In this case, we are not helping either party. A lot of anomalies are expected to be addressed if an age of consent is fixed.
Another concern is that the ambiguities in the provision is creating room for manipulation and robbing men of nine precious years of their life if a girl wants to take advantage of the loophole in the law. This is already happening.
Rape is a serious crime and perpetrators need to be punished. But there is a thin line between consensual sex and rape because of the provisions in our law.
The concerns are clear and loud. We need to amend the provisions. There is a judicial reform exercise going on. It is the most appropriate forum to take up the issue settle the lines once and for all. Our laws need to be progressive. Practitioners of law know well about the ground realities.