Amended penal code decriminalizes homosexuality and is tougher on rapists

MP Ugyen Namgay, the Chairperson of the Joint Committee on Penal Code of Bhutan presented 24 disputed clauses of Penal Code (amendment) Bill of Bhutan 2019 at a joint sitting in National Assembly after which the MPs adopted the bill.  

The Bill also has harsher punishments for rapists.

The amended penal code has increased the grading of rape of a married person and rape of a pregnant woman to felony of the third degree, an imprisonment term between five to nine years from the earlier fourth degree of three to five years.

In addition, the sentence of a rape of a pregnant woman is graded to felony of the second degree (nine to 15 years), if the fetus is harmed/ destroyed as a direct result of rape. The amended penal code also increased the grading of gang rape from felony of third degree to felony of second degree.

The sentence for the gang rape of a pregnant woman has also been increased to felony of second degree from felony of third degree. However, the punishment will be further increased to felony to first degree (15 years to life) if the fetus is harmed/ destroyed as a direct result of rape.

MP Dil Maya Rai during the discussion said. “We need a draconian law to make people hesitant and scared of committing such crimes. Law shouldn’t be just to punish the criminals.”

Minister to Health, Dechen Wangmo meanwhile said that the law is same for rape and burglary which is why there is need to relook into the law. “We do not know if making the law stringent will curb down such crime. However, let’s try doing it as we see some potential.”

Meanwhile, though NA proposed to drop section 213 of the Penal Code of Bhutan 2004 on unnatural sex, the NC recommended that the section should remain, by altering the definition to not criminalize the LGBTIQ community.

As recommended by the joint committee, the amended section states that, a defendant shall be guilty of the offence of unnatural sex, if the defendant engages in sexual conduct that is against the order of nature. However, homosexuality between adults shall not be considered unnatural sex.

Two new sections on fronting has been added to the penal code whereby the joint committee’s recommendation states that, a defendant shall be guilty of an offence of fronting, if the defendant leases or subleases, hires or otherwise permits another person to use or operate one’s license unless otherwise permitted by laws or policies. For the purpose of this section “license” includes any clearance, approval, consent, no objection, registration, concession and the likes issued by a competent authority.

The grading of fronting as per the joint committee’s recommendation, if the fronting takes place between Bhutanese nationals, is a violation for the first conviction and would be a petty misdemeanor and cancellation of license for the second conviction.

However, a felony of the fourth degree, or a value based sentencing, whichever is higher will be given if the fronting takes place between Bhutanese and a person other than Bhutanese nationals or between person other than a Bhutanese national.     

The bill was adopted with 63 yes votes and 6 abstaining out of 69 members in the house. The 24 disputed clauses of Penal Code (amendment) Bill of Bhutan 2019 include seven clauses on rape related cases. Rest are clauses on child in conflict of law, unnatural sex, grading of burglary, abuse of market, fronting, entrapment, crime against public election and grading for drawing an illegal document.

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