The Bhutanese Leading the way.
The National Council in its deliberation of the Penal Code Amendment Bill on 17th and 20th January saw an interesting proposal from the NC Legislative Committee on the age of consent.
The proposal is to prevent the criminalizing young boys who may have had sex with a girl between 16 to 18 and made her pregnant when the boy himself is 16 to 18 years old.
Currently the court anyhow locks up a boy after he turns 18 plus once a case is filed by the pregnant girl’s parents even though the boy had the sexual relations when he was below 18.
Currently section 183 of the Penal Code on rape of a child above 12 year of age says, “A defendant shall be guilty of the offence of a rape of a child above the age of 12 years if the defendant commits any act of sexual intercourse against a child between the ages of 12 to eighteen years. However, consensual sex between children of sixteen years and above shall not be deemed to be rape.”
The NC’s Legislative Committee has proposed to change this to, “A defendant shall be guilty of the offence of a rape of a child above the age of 12 years if the defendant commits any act of sexual intercourse against a child between the ages of 12 to eighteen years. However, if the sexual intercourse between children of sixteen to eighteen years was consensual when it occurred, it shall not be considered to be rape thereafter even if one of the children has become an adult when a complaint is lodged.”
This change in the section has been put in by the NC Committee as the courts have interpreted the 2011 Amendment of ‘However, consensual sex between children of sixteen years and above shall not be deemed to be rape,’ in a very conservative manner.
The courts even sentence boys who may have had the sex when he was below 18 with a girl between 16 to 18. The only reason being that he was above 18 at the time of the filing of the case and the girl is pregnant.
A legal expert said that this narrow interpretation by the courts of the current section 183 has resulted in many cases of boys being locked up for impregnating girls even when they were underage themselves only because they were 18 plus when the case was filed.
The expert said that a typical case could be a girl between 16 to 18 and a boy living together or even married in a rural area. The boy makes the girl pregnant and somehow there is some marital discord. There are quite a few cases where either the girl’s parents or others file a case against the boy who would have now turned above 18.
The court does not consider that the sexual relation happened when the boy was 18 and below and so he is booked for statutory rape.
The exact language will be finalized when the Bill is debated again on 7th February but it is largely expected to remain along this line.
In the last session the National Assembly legislative committee recommended lifting the age of consent from 16 to 18 based on the suggestion of the National Law Review Taskforce (NLRT) but it did not get support.
The NC seems to have found a much more nuanced way of not lifting the age of consent but affording protection to boys who get convicted later for an act they did when they were of the right legal age.
