Today, I wish to share my personal thoughts on the rape of a child above the age of 12 years.
Before I introduce the legal complexities it involved, let me illustrate a simple hypothetical example. Although there are numerous cases decided by the Courts, I am simply not discussing any of them because I do not want to make this writing too academic and boring. Nevertheless, the hypothetical illustration that I provide here is designed based on the real facts and situations that we hear from time to time.
Let us assume this way: Ms Eden is a class eleven student studying in Regi Central School. She is 17-year-old and she comes from an economically disadvantaged family. She has a 19-year-old boyfriend (let’s say Dorji) doing a small business in her home town which her parents were aware of. One day, she was neither present at school nor at home. Although the parents knew her staying with her boyfriend, they just ignored the matter. Because she was absent for a week at school, the school administration of the Regi Central School informed the police where the search operation was carried out thereafter. After few days, the Police came to know that she has been married with her boyfriend Dorji. The hospital has later confirmed that she is already pregnant.
Because Eden is a minor, the police then detained Dorji, charged by the Office of the Attorney General (OAG) for the offence of ‘rape of a child above 12 years of age’, and parents were charged with the offence of ‘aiding and abetting of a crime’.
As we could imagine, this short hypothetical illustration is not going to be interesting in a real-life situation.
Before proceeding any further, let us read the provisions of ‘rape of a child above 12 years of age’ as stipulated in the Penal Code of Bhutan:
Section 183: 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, consensual sex between children of sixteen years and above shall not be deemed to be rape.
This provision of the law is often problematic. As any other provision of the law, this provision is conceived for the general welfare of the society. We cannot imagine the society without the rule of law. In specific reference to this provision, the legislative intent is to promote the well-being of the child by protecting them from harm, sexual abuse and exploitation. However, the most striking issue is how to balance between the protection of the child from sexual abuse and exploitation, on the one hand, and permitting the sexual expression of young persons as they proceed through adolescence into young adulthood, on the other.
There are numerous scientific discourses and arguments that have been examined and analysed with specific reference to adolescent sexual behaviour. A plethora of studies have established that adolescent begins to learn their sexuality and become more mature in several life domains, and the matter of truth is that adolescents actively engage in different forms of sexual behaviour. Similarly, there are enough legal commentaries and critiques written on this particular subject.
But for our discussion, I will just narrate some social and economic arguments, let alone be the legal argument set aside. In other words, I do not wish to write as many legal arguments as possible, rather focus shall be on the socio economic aspects. This is because, if we read the law as it is, we can glimpse from the above provision of the Penal Code that ‘sexual intercourse’ itself is a crime in Bhutan. But rape is more than a sexual intercourse which I think all of us will agree to this general conception. But, I am afraid some may not agree with my assertion, and presumably, that is their monopoly business.
It needs no further explanation why the above hypothetical illustration, when applied the penal law as it stands today, is causing social problems. If we postulate the purpose of this rape provision, it basically is to:
- Protect young people from sexual abuse;
- Enforce morality;
- Prevent teenage pregnancy; and
- Reduce child welfare dependency.
Now, analysing the above hypothetical illustration, Mr Dorji is already put behind the bar. He is away from his newly wed wife Eden and their baby will not see his/her father for nine years. Does the law serve the purposes that I mentioned above? In fact, this is a very painful situation for the minor wife – Eden.
By sending husband to the jail, the minor Eden is exposing to become a victim of social menace, sexual abuse, her morality is not enforced, and her welfare dependency is rather exacerbated. This is something that we fail to consider.
The situation is even more painful to the fact that her parents were charged for the offence of aiding and abetting. Aiding and abetting, according to the Penal Code, is a fourth-degree felony or a half the sentence of a crime thus committed. If that’s the case, the parents will receive 3 years of imprisonment or 4.5 years respectively. If the intent of the rape provision is to protect the children from exploitation, I think this application of the law should be based on the facts and circumstances of the case. In this hypothetical example, by sending both the parents and husband into the jail, we are separating the child Eden from her parents and the husband; and she has to endure herself all the pain and grief that comes in the real life of human existence. More importantly, this certainly provides both social and economic problems for the child. It will be very difficult for her to stand on her own feet. Food, clothing, shelter, and education for her baby will become a mere dream. From the child care, protection and justice point of view, by protecting the child from rape, we rather double victimising the child by leaving herself in the society. Remember, I am talking exclusively from the hypothesis that I have designed above, considering the fact that minor Eden is already pregnant and married.
Then what is the best solution?
I would like to base my argument and analysis on the Marriage Act of Bhutan 1980. The Marriage Act of Bhutan prohibits the child marriage but the marriage per se is not criminalised by the Act. The only penalty for the child marriage is that they are not entitled to the marriage certificate from the competent court of law. Interestingly, the following provision from the Marriage Act is important to be noted:
Section Kha 8-20: Whereas the performance of child marriages in villages are seemed to be against the laws, the realization of expenses so incurred for performing such marriages shall not be permitted. And where there have been exchanges of any lands, houses, properties, livestock etc. in such marriages, then the person who has given such properties shall have to take them back, and the persons performing such child marriages in contravention of the prescribed law shall be punished with a fine extending from Ngultrums three hundred to Ngultrums one thousand.
This provision is self-explanatory in nature. It does not criminalise the child marriage, rather the persons performing such child marriages are made accountable to pay a fine of Ngultrum three hundred to one thousand.
The Parliament of Bhutan has come up with the Marriage Amendment Bill, and its discussion is likely to take place in this winter session. The Amendment Bill has similar following provision:
Where a child marriage is performed and there is realisation of expenses incurred for performing the marriage and exchanges of any properties, the person who has given such properties shall be returned, and the parent or guardian performing child marriage shall be punished with a fine at national daily wage rate of three months to one year calculated in accordance with the Chhatrim for National Wage rate.
The Marriage Amendment Bill also does not criminalise the child for marrying at the young age. Rather, it imposes the parent or guardian with a certain amount of fine calculated in accordance with the Minimum National Wage rate. It does not authorise the law implementing agency or the judiciary, in any manner, to invoke the Penal Code to charge them, or to detain them, or to make them divorce, or to convict them. The legislative intent can be well comprehended from this Amendment Bill. This simply is a marriage activity and invoking the Penal Law is an insane act.
When I argue thus, I always remember the Delhi District Judge Sh. Dharmesh Sharma who said: “[I] am afraid, if that interpretation is allowed, it would mean that the human body of every individual under 18 years of age is the property of State and no individual below 18 years of age can be allowed to have the pleasures associated with one’s body.” Here, the Delhi District Court was determining a case concerning the 22-year-old boy and the 15-year-old girl who were married voluntarily. The Judge went onto say that “[…] there is nothing to indicate that she was enticed or taken away by the accused since the girl child knew what she was doing and got married voluntarily and physical relation with the child was not in the nature of assault or consequent to use of any criminal force upon the girl child.” This statement I think is not devoid of any intellectual wisdom.
Marriage is an act of sanctity, and some even say ‘marriage is made in heaven’. It is completely a personal right to marry with one’s own choice. It is a constitutional and fundamental human right to form a family. But when I say this, it does not endorse or encourage the child marriage in any manner whatsoever. I am completely aware of the risk associated with the child marriage, and we have to discourage, prohibit, and ensure that children, parents, teachers, society, and every individual are made aware of the risk associated with the child marriage and teenage pregnancy. However, there still are certain people who are not informed of the associated risks and they get married before they attain the age of majority. Sometimes, it happens by mistake, out of ignorance, and certain circumstances are unavoidable. When that happens, how does it justify to criminalise them? We cannot make minor Eden divorce at this very young age. How can we guarantee that she will be reintegrated back into the society? Who will marry her thereafter? How does her life be socially and economically better by criminalising their marriage? I am asking a lot of questions. This is something we really need to think, not once or twice, but for many times.
I would also consider the act of marriage as any other form of contract. We should possess adequate knowledge and information to understand that the marriage of a child is completely a civil action and not a crime. Therefore, I would interpret this kind of act as a “voidable marriage” – a marriage that will become enforceable upon attaining the age of majority. Obviously, as mentioned above, the minor will not get a marriage certificate as per the Marriage Act, but this does not prohibit them to obtain the Marriage Certificate upon attaining the age of majority. This is the principle of voidable marriage that I am basically talking about. The simple argument here is that I am making a point where we are not supposed to confuse between the civil wrong and the criminal act. Let alone the child marriage be the civil wrong; let us not confuse further. I think this makes sense.
Because my hypothetical illustration explicitly deals with the marriage of a child with her major husband, their marriage becomes voidable. Instead of making Eden a ‘divorcee girl’ from her childhood itself, I think it is comparatively reasonable to provide her with an adequate information, guidance, advice, support and counselling on a wide range of issues including the teenage pregnancy and how life should be led as a married couple. It will make their life not only good but we are also not losing our productive citizen in the jail.
There are many things to be discussed in this particular issues. I will discuss with a different hypothetical example and provide few scientific reasonings and arguments in PART II. Hope you enjoyed reading this as much as I enjoyed writing.