Two Houses at loggerheads over unnatural sex provisions 

Choki Wangmo 

National Assembly (NA) rejected the National Council’s (NC) recommendation on section 213 and 214 that criminalise unnatural sex and its grading in the Penal Code while re-deliberating the Penal Code Amendment Bill yesterday.

Home Minister Sherub Gyeltshen alone was in support of the recommendations.

In what seemed to be a stern move,  most of the MPs said that NC’s recommendation was unclear and baseless, citing that one way or the other, the sections criminalised lesbian, gay, bisexual, transgender, intersex and the queer community.

Chairperson of the legislative committee for NA, Tshewang Lhamo, said that the term ‘natural’ and ‘unnatural’ can never be defined and what NC did to the sections were vague. As a result, it would complicate the working process for the judiciary system as well.

“NC should amend laws according to facts and figures.”

Commenting on NC’s amendment, “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. For the purpose of this section, unnatural sexual conduct is considered not to have been committed in private, if it is committed in a public place”, the MP said that the Parliament should be least concerned about where and when people have sex.

Echoing the MP’s view, Finance Minister Namgay Tshering said that there was no need to define what natural and unnatural sex was. “The House needs to see the sections’ impact on the criminalised community.” He said that sexual intercourse was a private affair and it was pointless to even discuss.    However, forging the middle path, Prime Minister Dr Lotay Tshering, said that completely repealing the sections would have consequences in the future. “There are no recorded cases as of now but if it occurs in the future, there won’t be a proper law.”

Lyonchhen said that unnatural sex involved intercourse other than those conducted for biological purposes and to bear children which is natural.  He suggested accepting NC’s recommendations with some changes.

Meanwhile, the House unanimously accepted NC’s amendment of section 183: “A defendant shall be guilty of the offence of rape of a child above the age of 12 years if the defendant commits any sexual intercourse against a child between the ages of 12 and 18 years. However, if the sexual intercourse between the children of sixteen years was consensual when it occurred, it shall not be considered to be rape thereafter even if one of the children has become an adult when a complaint is lodged.”

The original section in the Code graded the defendant with an 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 and 18 years. However, consensual sex between children of sixteen years and above is not deemed to be rape.

NC’s proposal on sections such as statuary rape, value-based sentencing, child in conflict with law and rape, among others were also rejected by the House. Few sections will be tabled during the joint sitting.

Most of the members said that during amendment, the NC had increased sentencing of the offences in most of the sections in the Code which was not a sign of a progressive community. They said that people should be given time to rethink and change their life, considering that more than 50 percent of offenders in the country is youth.

The House will continue to deliberate on the Bill today.

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