One of the most controversial, confusing, and complex criminal laws across the world is defining what constitutes rape. Our law is not an exception. This week alone, two men were arrested for rape in Tsirang. They were arrested because of the age of two girls. Many men have gone behind the bar for the same reason. This raises a serious question as to whether we should brand every man or woman for rape only because they had a sexual relationship with another who happens to be less than 18 years of age. What if the rapist was born a week or few months before the victim and had a sexual relationship because they are in a relationship?

The current arrest is because Section 203 of the Penal Code of Bhutan (PCB), which states that “a defendant shall be guilty of the offence of rape of a child above the age of twelve years if the defendant commits any act of sexual intercourse against a child between the ages of twelve to eighteen years. However, if the sexual intercourse between children of sixteen to eighteen years was consensual when it occurred, it shall not be rape thereafter even if one of the children has become an adult when a complaint is lodged.”

To constitute rape, the elements under section 177 of the PCB must be fulfilled. This includes “sexual intercourse whatever its nature against any other person without the person’s consent or consent obtained by threat of death or grievous hurt or bodily injury or by force or substantially impairs the other person’s ability to appraise or control the conduct by administering drugs, intoxicants, or other substances without consent to prevent the person’s resistance such act or renders the other person unconscious to commit sexual intercourse.”  

Psychological studies of rapist have revealed that a rapist is often motivated by many complex thoughts, including “desire to punish, to gain revenge, to cause pain, to prove sexual prowess, and to control through fear to create shame, humiliation, confusion, fear, perpetual defilement and sense of vulnerability.”

However, in recent cases, age alone seems to be a factor in a conviction because Section 183 criminalises any sexual intercourse if the victim is below the age of consent.  If only age is considered, it defeats the whole purpose of criminal justice and violates the fundamental right to presumption of innocent until proven guilty and due process of law under Article 7 of our Constitution. The burden of proof fixed on the prosecutor to prove beyond reasonable doubt under Section 96 of the Civil and Criminal Procedure Code (CCPC) is rendered useless. On the contrary, a person is presumed guilty and already proven beyond reasonable doubt even before his trial begins.

The legislature failed to see this defect and possible abuse of this provision. The legislature must take cognizance and rectify the defects. If not, it will continue to deprive the right of sexuality, right to father in case of pregnancy, right to due process and right to presume innocent until proven guilty and burden of proof on the prosecutor.  While rapist must be given the most stringent punishment, it is also equally important to protect innocent lives from incarceration. 

Sonam Tshering

Lawyer, Thimphu

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