The proposal to reduce the age of consent from 18 to 16 has led to a polarized debate.
One side argues that this will lead to the sexual exploitation of young girls by much older men and predators, and the other side says the law in its current form has criminalized many young lovers and particularly boys.
This may sound clichéd -but both sides are right in their own ways.
The amendment has been driven mainly by outrage in the society and social media on how even in the case of young consenting lovers, the boy is charged for rape, even with the girl stating and pleading it to be a consensual case.
This is why the judiciary, lawyers and the police are the main supporters of reducing the age of consent as it is they who witness this and have to do the work of arresting, prosecuting and imprisoning young people.
On the other hand, there is rightly a high degree of concern among women and child protection groups like NCWC, RENEW and concerned citizens on the already rampant crimes and exploitation of children and how lowering of consent will make the situation worse by removing this legal protection.
Internationally, the age of consent varies. It is at 18 -mainly in some African countries, India, Turkey, Vatican City and parts of the USA. It is 17 in Cyprus, Ireland, parts of the USA and one state of Australia.
If you look at numbers the majority of countries in the world keep the age of consent around 16 or even lower in all of Europe, all of South America, all Eastern European states, Central Asia, Russia, China, Japan, South Korea, parts of Africa, large parts of South East Asia and most of Australia.
There are few countries in the gulf and Islamic countries that only allow sexual relations after marriage though sexual and physical violence against women is quite high in these countries.
On the other hand, the issue of child brides in these Islamic countries and even other developing countries means that there is no age of consent sometimes resulting in severe health complications and even deaths of these child brides- at times during the very night the marriage is consumated.
However, Bhutan must frame the laws as per its own ground realities, its acceptable customary practices, the level of development and with the main overarching aim of protecting girls and children.
While Bhutan is a sexually liberal society, it is also a matter of fact that there is also an unhealthy level of sexual crimes and predation and in many cases the victims are children.
It is not unheard of to hear of older ‘sugar daddies’ having ‘girlfriends’ in schools and waiting with their cars outside schools to pick up their under-aged victims.
In the rural areas there are many stories of ‘night hunting’ where both urban and rural men prey on young women regardless of their age or at times -even against their will.
While the word ‘night’ and ‘hunting’ should remove any illusions to what the practice really is there are those who justify it as ‘tradition.’
There are also regular news reports of horrific crimes against women and children including rape through incest.
In rural Bhutan there are still places where it is considered almost an acceptable practice to sexually harass women falling short of legal rape.
Stories from urban areas also do not inspire much confidence as there are horrific stories of sexual exploitation in various professions including in the movie industry.
And it is always the young ones who are most vulnerable in all the above cases.
On the other hand, there are heart breaking cases of young in-love couples and even married spouses being torn apart by this law when they get reported to the law by either a parent not happy with the union, an unhappy local carrying a grudge or other factors.
Young men whose only crime may have been to fall in love and have consensual sex are treated at par with criminal rapists who ravage women against their will.
The supposed victim may shout on the top of her voice that there is no crime but the law will take its course.
The argument could also be made that since most of the world including the west has 16 as the agent of consent, Bhutan should also follow suit.
Given the above two sides of the debate it is clear that the status quo cannot be allowed to continue on either side and a sensible middle path must be found.
The solution here is not to lower the agent of consent from 18 to 16 given the above ground realities.
However, the Parliament could instead bring in amendments or even a new and specific law that gives the judge some discretionary power in genuine cases where there is not a big age gap between the two consenting youths and there are genuine mitigating circumstances like a marriage or being in love.
USA, while having the age of consent between 16,17 and 18 in its different states also has ‘Romeo and Juliet’ laws to avoid statutory rape charges for two young consenting lovers with an age gap under four years going up to 19 years of age.
Bhutan does not have to have the same exact law but it can come up with its own version without opening up young girls to predation by much older men, but also giving judicial flexibility in genuine cases between young lovers.
This, however, does not mean a 40-year-old sugar daddy going after an impressionable 16-year old. This must be not be allowed or tolerated.
Bhutan, in a 2011 Penal Code amendment, already decriminalized sex between two consenting minors above the age of 16. Maybe this section could be further modified and improved to protect young lovers without a big age gap engaging in consensual sex.
There could also be other more creative legal solutions that work to really protect the real victims and not penalize the truly innocent.
However, the issue at hand is not just the law.
A lot of the statutory rape cases occur in rural areas where people are not aware of the age of consent and end up paying a huge price.
Here, there must be all out efforts by all stakeholders from women and youth groups to law enforcement and relevant government agencies to make people aware of the age of consent being 18.
Otherwise, the numbers of statutory rape cases will keep rising putting more young men behind bars which in turn will keep increasing the pressure to again lower the age of consent.
This distracts away from the real issues facing women and children when it comes to their safety.
The law is only a part of the solution when it comes to protecting women and the young.
The protection of women and the young also have to do with doing away with or discouraging a patriarchal mindset that sees women as inferior or mere objects.
We must work to make our homes, villages, towns, schools, offices, factories and public spaces safer for women, girls, children and even men.
One concern beyond the law is that our youths must get early and adequate sex education and they should be made aware of consent and the various implications of having early and or even unprotected sex.
They should be aware of the risks of becoming young parents and realize the huge dangers of sexually transmitted diseases.
Our children should be taught what is a wrong touch or even wrong words from a very young age.
Parents, teachers and other stakeholders should always be vigilant against both adults and minors.
As in many cases in Bhutan, lawmakers assume that the law is the problem or the solution but very often there is much more that needs to done and can be done beyond laws.
No amount of tough laws or their amendments, for that matter, can fix a deadly serious societal problem that needs to be tackled from root to tip.
“The vast majority of incest begins years before the earliest conceivable age of consent.”
Judith Lewis Herman