The existing provisions under the Penal Code of Bhutan (PCB) on the offence of rape involving minors require an urgent legislative reform to safeguard the fundamental rights and welfare of the nation’s children and women. The current statutory framework, embodied in Sections 183 and 184, adopts an overly rigid approach that risks undermining the best interests of children particularly when the woman becomes pregnant through mutual consent.

Section 183 deems any sexual activity with an individual aged 12 to 18 as statutory rape, with a narrow exception for consensual acts between 16 and 18-year-olds. This blanket criminalization fails to account for the nuances of consent and the surrounding circumstances that may inform meaningful consent by an older teenager. Section 184 classifies the offence as a second-degree felony, carrying a stringent prison sentence of 9 to 15 years’ imprisonment.

While legislated aimed at protecting minors, these provisions risk compromising the very rights and interests they seek to uphold. The recent case of the 15-year-old pregnant girl whose partner faces prosecution for statutory rape, despite her claim of a consensual relationship, illustrates the potential for injustice. This is not the first instance and won’t be the last. By terminating the fatherhood and branding him a rapist, the law attaches an unwarranted stigma upon the child, undermining their welfare and standing in society. It robs the child of one of the parents.

This means the nation embraces that any children born who are ostensibly consensual underage relationships if one parent is above 18 years are legally designated as “children of rapists”. This draconian characterization, exhibiting a one-size-fits-all all approach, is an unconscionable breach of these children’s rights and dignity, contravening the paramount principle of upholding their best interests enshrined in the Constitution, Childcare and Protection Act, Child Adoption Act, Convention on the Rights of the Child which Bhutan is a party, and the Penal Code itself- with no option of restorative justice. Branding the father as a rapist attaches a stigma to the child as the offspring of a convicted sexual offender. Moreover, where an underage pregnancy arises from a consensual relationship, with both parties anticipating parenthood, incarceration of the father before the child’s birth arguably contravenes the overriding objective of safeguarding children’s rights and welfare, strips the child’s right to both parents and social and economic support for the family.

The central issue revolves around whether consensual underage relationships should constitute statutory rape. If the girl had not become pregnant, it is unlikely the relationship would have been reported or the man arrested, as there would be no evidence of a crime absent the pregnancy as proof of sexual activity with a minor. This raises the question of whether incarceration is appropriate when the mother becomes pregnant before 18 years of age at the time of consent.

Therefore, to uphold the paramount interests of our precious future- children, Section 184 must be amended to grant judicial discretion in evaluating whether rape has indeed occurred after considering all circumstances. Consent should be the primary focus, followed by factors that may have influenced the victim’s consent, and the impact of such sanctions on the rights and interests of child and father’s support to the family.  Without such reforms, more fathers will be unjustly branded as rapists, more children will bear the stigma of being “children of rape”, and more families will suffer undue hardship driven by an inflexible statutory regime.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.