Ambiguities exist in penalties over consensual sex among minors

Lawyers say consensual sex among minors should be legal

Following the criminalization of many young people because of the criminal proscription of sexual intercourse with a child between 12 to 18 years, some lawyers feel that some sections of the Penal Code of Bhutan (PCB) 2011, particularly the offences for consensual sex with minors, need to be interpreted differently.

A lawyer from Nyinda Legal Consultancy Firm said in terms of consensual sex among minors, the accused should not be punished under section 184 of the PCB, which categorizes the offence of rape of a child above the age of 12 as a felony of the second degree.

Citing a scenario of a 16-year-old girl and a 17-year-old boy, the lawyer said both the girl and boy with the above age gap can lawfully consent for sexual intercourse as per section 183 of PCB (amendment) 2011.

“However, after one year, when the girl turns to 17 years and the boy turns to 18 years, the application of the same section of the law takes a different turn and the boy will be liable for rape of a child above 12 years, thus defeating the very intent of the law,” he said, adding that section 181 and section 183 of the PCB 2011 should be read and interpreted differently.

According to section 183, a defendant shall be guilty of the offence of rape of a child above the age of 12, if the defendant has sexual intercourse with a child between 12 to 18 years.

A private practicing lawyer, Tashi Delek, said an ideal situation to address this problem is to attempt to attach a broader meaning to and interpret Section 183 in such a way so as to avoid criminalizing consensual sex falling outside the scope of statutory rape.

“This argument is based on the fact that statutory rape is defined separately under Section 181. In so doing, there is a need to reconcile the penal provisions regarding rape especially with regard to children,” he said. “Section 183, as it stands, seems to have opened up a can of worms and have paved the way for blackmailers to use this section as a bargaining chip in their devious scheming ways. Such a provision also raises the issue of state enforcement of public morality.

Lawyer Tashi Delek also said that there is no need of having a separate provision on ‘Rape of a child above 12 years of age’ under Section 183, as there is no difference between such a provision and the provision on ‘Statutory Rape’ under Section 181 apart from the fact that the grading of the offence under Section 183 is less severe.

He added that the very purpose of both sections seem to prevent sexual act with a minor and irrespective of how it is worded, the intent seems to criminalize the perpetrator whether the act was consensual or not.

Lawyer Tashi Delek suggested that the provision on ‘Rape of a child above 12 of age’ could be repealed and then the provision on ‘statutory rape’ could be amended to increase the age limit to 15.

“Having already determined the age of consent as being 12 under Section 181, further proscription with regard to age of consent again under Section 183 amounts to breeding ambiguity in statutory rape laws as it provides two sets of ‘age of consent’ under the same law,” he explained, adding that removing Section 183 would bring the age for statutory rape in line with most other jurisdictions.

The chairman of the legislative committee of the National Assembly Ritu Raj Chhetri said statutory rape of 12 years and below is clearly defined in the PCB.

However, even if the judiciary has been strictly implementing it, Ritu Raj Chhetri said there is a total misinterpretation between the age of majority and age of consent. The age of majority is 18 years as per the PCB.

“But anyone below the age of 18 is a minor and there is a protection saying that since 12 years and below we have to protect the child so with or without consent it is rape. But above 12 years with consent should not be considered as rape. Internationally the norm is like this,” he said, adding that Bhutan is a member of Convention on the Rights of the Child (CRC) and it does provide protection for child below the age of 15.

“The way judgement is passed by the judiciary it appears as if the intent of the law is not clear,” he said, adding, “We need to emphasis and insert one new provision saying that anyone having sex above the age of 12 years with consent is not rape. We need to clarify that provided the child is mature enough to understand what is right and wrong.”

However, MP Ugyen Wangdi said anyone, either boy or girl who is 18 years and above, does not get the protection of the provision. “In case of a boy who turns 18 years, the law should take cognizance of the time of the cause of sexual offense. It has to be on the time of occurrence that is 17 years. Therefore, he should not be penalized,” he said.

“In the case of both parties being minors, their consent may not be valid in the eyes of the law and may need to amend the provision if so requires. But otherwise, I do not see any discrepancies in the law,” the MP said, adding that there is a need to amend Section 181 so as to ensure that minor consent is no consent under the international law of CRC.

Similarly, the chairperson of the legislative committee of the National Council, Sangay Khandu, said that an adult should be liable if he has taken undue advantage of the immaturity of a minor or have exploited him/her under any circumstances. But if the situation is out of real love and marriage, this should not be viewed as an offence.

He also said that while the intent of legislations is always for the benefit of the society and the people living there, the gravity of penalty imposed through legislations might have to be rational. “The discrepancy in law I see is not having clear segregations based on the situation as well as gravity,” he said, adding that there is good intent, but it’s not clearly articulated in the provisions.

“Perhaps we are parties to the international conventions that oblige us to have legislation in relation to child protection and care, but it does not compel us to impose such harsh penalties through legislation,” he said.

He added that when there is consent it is not rape, but statutory rape. It should not be viewed at par with rape when there is consent. “The gravity should be weighed among real rape and statutory rape. Even if it is considered statutory rape to protect minors, the penalty should be kept to bail-able rather than keeping as felonies.”

Dechen Dolkar from Thimphu