In less than a fortnight after the Supreme Court sentenced 26-year-old man to nine years in prison for having sexual intercourse with a minor, two other men land in prison for the same crime.
The highest appellate court last week sentenced two men to nine years each in prison for having sex with a 16-year-old girl. Upholding the part of the Thimphu dzongkhag court verdict, it asked the two men to pay Nu 90,000 each to the victim.
The Supreme Court convicted Kinley Dorji, 25, from Rubisa, Wangdue, and Phurpa Dorji, 22, of Langdurbi, Zhemgang.
The two men were guilty of a second degree felony, having sex with a girl between the age of 12-18 years, for which the penalty in the Civil and Criminal Procedure Code ranges between a minimum of nine and 15 years of imprisonment.
It is a crime to have sexual relationship with a girl below 18 years. Section 183 of the Penal Code of Bhutan states: “A defendant shall be guilty of the offence of rape of a child above the age of twelve years, if the defendant has sexual intercourse with a child between the age of twelve to eighteen years.”
The Supreme Court, from the statements submitted by the parties, found that the two men did not use force or coercion.
The district court’s bench five in August last year sentenced the two men to a year in prison for sexual harassment.
While police and the Office of the Attorney General (OAG) charged Kinley Dorji and Phub Dorji for rape of a minor above 12 years of age, the court sentenced them for sexual harassment, citing the Penal Code’s sections 75 and 76, which states that ignorance or mistake as to a matter of fact shall be defence if the mistake or ignorance negates the purpose.
The verdict stated that the two men presumed the victim was above 18 years since she was working in a drayang and also her physical appearance implied that she was not a minor. The two men also reasoned that they assumed she was an adult as she was involved in gambling.
The court’s verdict also reasoned that it was consensual and also because the girl admitted in writing to police that they should not be punished, as she had relations with both of them.
It was also learnt that besides the confession of the two men that they had physical relations with the girl, there was no other proof or evidence.
OAG appealed to the High Court stating that she was a minor when she had relations with the two men. Besides many reasons for appeal, OAG also stated that the lower court’s reasoning of physical appearance and mistake of facts were unjust and unfair and also it cannot be graded as consensual, as the minor’s consent should not be taken into consideration.
The High Court, in the verdict, stated that the lower court made a mistake for altering the charges to sexual harassment from rape of minor above 12 years. “So in accordance to Civil and Criminal Procedure Code of Bhutan’s section 111 (b) reverse the judgment awarded by the lower court after due process of law,” the verdict stated.
The High Court, therefore, graded the offence to felony of third degree and sentenced them to nine years each in prison.
The two men were arrested on May 8, 2015.