Choki Wangmo

The National Council yesterday unanimously passed the Penal Code Amendment Bill of Bhutan 2019.

The legislative committee of the House was last month asked to review and rework on amendment of 13 of the Penal Code’s 51 sections.

Unnatural sex (213) and the grading of unnatural sex (214) were among the most debated sections.

The amended Section 213 states: “A defendant shall be guilty of the offence of unnatural sex, if the defendant commits any sexual conduct that is against the order of nature. However, any consensual sexual conduct that is against the order of nature committed in private between any adult human beings shall not be considered unnatural sex.”

It further states: “For the purposes of this section: a) unnatural sexual conduct is considered not to have been committed in private, if it is committed in public place; and b) unconsent has the same meaning as defined in section 177 (a)—(d) of the Code.”

According to the amended Section 214, the offence of unnatural sex is a petty misdemeanor; a third degree felony if unnatural sex is conducted or committed without consent as described within the exception of this section; a second degree felony if it is unnatural sex is conduct or committed between minors between the ages of sixteen to eighteen years with or without consent.

The previous amendment by National Assembly vrecommended removal of the clauses as they criminalised the lesbian, gay, bisexual, transgender, intersex and queer communities. However, the NC’s legislative committee recommended retention  of the clauses reasoning that it might be a rushed decision for the country to remove the clauses.

Some of the members said that the removal would encourage sexual intercourse with animals and corpses. Others sought clearer definition of “unnatural sex”.

Chairperson of the committee, Choining Dorji, said that although there was pressure from online petition, the decision was solely based on the larger interest of the country. “It is a win-win situation.”

The National Council Act states that the House shall not be bound by voters or interest groups and shall function in a non-partisan manner in their Parliamentary work.

Section 154 on trafficking also saw major amendments. Choining Dorji said that the section was amended after aligning the definition of ‘trafficking’ with Child Protection Act of National Commission for Women and Children and Palermo Convention.

The amended section states: “A defendant shall be guilty of an offence of trafficking in persons if the defendant recruits, transports, transfers, harbours or receives a person by means of the threat or use of force, or any other form of coercion, abduction, fraud or deception, the abuse of power, the abuse of the position of vulnerability, or the giving and receiving of payments or other benefit to achieve the consent of a person having control over another person for the purpose of exploitation. For the purpose of this code, “exploitation” includes, but not limited to, sexual exploitation, involuntary domestic servitude, forced labour, child labour and trafficking of human organs.”

Meanwhile, as proposed by Punakha’s council member, Lhaki Dolma, the offence of rape of pregnant woman was so amended: a felony of the third degree or a felony of the second degree if the foetus is harmed as a direct result of rape and is liable to pay alimony in accordance with other laws wherever applicable.