In my last writing, I have briefly explained why the ‘child marriage’ should not be considered as ‘rape’ in the absence of a clearly expressed provision of the law. In this part, I will provide two case scenarios decided by the Honourable Supreme Court of Bhutan and argue why ‘sexual intercourse’ per se with the child above the age of 12 years should not be a crime. I maintain that there is a need to have either the legislative intervention or the judicial interpretation so that justice is provided as it ought to be provided.

Let us consider the following two cases:

In the case of the Office of the Attorney General v. Sonam Phuntsho, a 21-year-old Sonam Phuntsho and his 16-year-old girlfriend went to Simtokha for a walk (presumably for a date), and towards the evening, they went to Olakha and spent a night near Pelkhil School. The next day, they went to Bjemina and spent a night at his father’s house. While the victim reportedly stated before the Court that the sexual intercourse with her boyfriend was purely a consensual, and medical report stated to have no evidence of physical violence or force or intoxication, the court has however found the accused guilty of rape of a child above the age of 12 years and sentenced him to nine-years imprisonment.

In April 2017, the Honourable Supreme Court has convicted 25-year-old Kinley Dorji and 22-year-old Phurpa Dorji to nine years in prison for having sexual intercourse with a minor. The fact of the case is quite interesting. The victim in this particular case was a 17-year old girl working in a Drayang whose physical appearance was taller and much matured than the two convictees. Based on this factual situation of the case, the trial court has invoked the ‘defence of mistake of facts’ and convicted them under the sexual harassment. However, both the High Court and the Supreme Court has found an error in the trial court’s verdict and convicted them for nine years.

Believe it or not, the above case scenarios do not possess any element of rape from any angle, and thus, do not constitute a crime at all, at least in the eyes of the laymen. For the pursuit of justice, I ask how far the ‘sexual intercourse’ with the minor itself is a ‘crime of violence’? What age onward can the young people effectively consent to sexual behaviours and relations? Bhutanese penal legislation certainly considers the rape of a minor above the age of twelve years as a ‘crime of passion’ rather than a ‘crime of violence’. The State cannot justify prosecuting a young adult for ‘passionately having a sex’; rather State can easily justify prosecuting for having a ‘violent sex’.

Presumably, some people may find my statements objectionable and might argue that this kind of discussion only abets adult sex offenders who prey on the young children. They might argue that my statements are trying to excuse criminal behaviour by referring to voluntary or mutual relationships with children. My intention nevertheless is more to be gained than risked. If our goal is to prevent minor-adult sexual relationship, strategies must be devised based on the practical realities of the time. It is unreasonable to sentence nine to fifteen-year imprisonment for having a consensual sexual activity with a “matured minor”. If some young people are initiating sexual activities with an adult they met in social medias, it is ineffective to assume that all such relationships start with a predatory or criminally inclined adult. Obviously, we hear, for instance, a 17-year young monk impregnating a 35-year-old woman, which gives us a weird situation. Therefore, my principal concern here is to provide a few constructive arguments for the benefit of every individual and for the cause of justice.

There are a number of interesting cases of such nature decided by the Courts. But unfortunately, almost all judgements are based on a ‘mere application of the law’, and there is hardly any interpretation. The idea of justice and fairness is ill conceived, especially in these rape cases, and no jurisprudence has been developed through judicial interpretation. When I say this, some might argue that Section 183 of the Penal Code is exhaustively expressed and there is no room for interpretation. While reading the plain letter of the law is crucial, I think every single provision of the law needs clarification which can be only done through judicial interpretation. If we are to apply the law as it is, probably the need of a legal expert to advocate the case or to adjudicate the case is something to be reconsidered. Pardon me if I’m exaggerating too much, but I wouldn’t hesitate to say that a mere general graduate would suffice to replace us – the lawyers – if the current trend is continued over a longer period of time. And on the other hand, despite the undesirable consequences of this rape provision, the legislature is adamant to amend the law. The call by the local leaders to lower the age of consent is simply going unheard. I suppose the parliament can do much better in this aspect. This has, in fact, motivated me to write this narrative piece.

I do not want to suffer myself a self-inflicting injury by saying what not to be said because the truth is the most dangerous weapon that hurts our sentiment. Without saying much, let us focus on why the rape of a child above the age of 12 years need a deeper analysis and assessment. To do that, let us re-read the Section 183 of the Penal Code of Bhutan 2004:

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.

For many of us, this provision is construed to mean that the ‘adult should refrain from having any sexual intercourse with the minor girl’. While this comprehension is correct, I also want to read this provision slightly different. For me, the provision also tells us that the ‘minor above the age of 12 years should refrain from having any sort of sexual activities with the adult.’ Unfortunately, some of us might not see any difference between these two statements. But there is. In the first statement, it is the duty of an adult boy, whereas, in the second statement, it becomes the duty of a minor girl. Whichever way we read and comprehend the provision of the law, our intention should be to provide justice and fairness as it ought to be.

The current trend, however, is that there is no justice in the eye of the public with regard to this specific issue. For example, if we analyse our first case scenario, Mr Soman Phuntsho should not have been firstly prosecuted and secondly convicted. Their sexual activity was purely ‘a consensual’ and there was no medical evidence of physical violence or use of force. Similarly, in reference to our second case, the two convictees were too unfortunate and the trial court was seemingly right to alter the charges. However, the most annoying argument put forth by many of us is that Section 183 does not provide the ‘consent’ requirement, and therefore, any sexual activity should consider as a rape irrespective of the consent or lack of use of force. I fully disagree with this argument because it is logically wrong to construct that way. If we are to believe that Section 183 has no ‘consent element’ and construe to mean that every sexual intercourse as a rape, then we are essentially saying that we have two ‘statutory rape’ provisions in our Penal Code. By such interpretation of the law, we are not bifurcating any distinction between the ‘statutory rape’ provision and the provision on the ‘rape of a child above the age of 12 years’. Without going further, let us read Section 181 of the Penal Code which provides for statutory rape:

Section 181: A defendant shall be guilty of the offence of statutory rape, if the defendant engages in any act of sexual intercourse whatever its nature with a child below twelve years, or an incompetent person, either with or without knowledge of the other person being the child or incompetent person.

This provision does not provide a specific definition of the statutory rape but provides what constitute statutory rape. Statutory rape is ‘a sexual activity below the age required to legally consent to the behaviour’. It usually refers to a sex with minor under the ‘age of consent’. Remember, the word ‘consent’ is very crucial in defining what constitutes the statutory rape.

Having defined the statutory rape in terms of ‘sex with minor under the age of consent’, and that statutory rape provision is provided under the Section 181, we cannot construe to mean Section 183 as same as Section 181. I fully understand the fact that both these provisions do not expressly provide consent criteria, but it can be inferred from the definition of the statutory rape. If statutory rape is defined in terms of ‘age of consent’ we have to infer this definition to construe that child above the age of 12 years can validly consent for sexual behaviours. The current practice tells us that even Section 183 is read as same as statutory rape and that the child above 12 years of age cannot consent to sexual activity. I personally believe that these two provisions have a different meaning and implication. For instance, Section 181 uses the phrase ‘either with or without knowledge of the other person being the child’ and this indicate that any sexual activities with the child below 12 years of age are considered as crime irrespective the accused’s knowledge of the other person being the child. However, this phrase is deliberately deleted while framing the Section 183 of the Penal Code. So, when this phrase is missing, I would like to essentially think that the sexual intercourse with the child above the age of 12 years is not to be considered as rape if the accused has no knowledge of other person being the child.

Section 181 considers that the sexual act itself is a prima facie evidence of guilt, and any consent between the partners, even if freely given, or even if the child has a knowledge of such act, or even if the act was committed with the knowledge of the other person being the child are all irrelevant and does not meet the standard of the law. In such cases, the law imposes strict liability on such person who has committed the act of sexual intercourse, whatever its nature, and there generally has no defence. However, Section 183 is framed slightly different, and the legislature has intentionally excluded the phrase ‘either with or without knowledge of the other person being the child’ for which reason, I believe, should be understood to mean that it does not impose a strict liability. The liability would depend upon the knowledge of the other person being the child.

I believe that the above interpretation is sound both logically and legally. Even if it is not, I would like to imagine that the legislature would not have intended, for whatever reason, to incorporate two statutory rape provisions in a single Penal Statute. This is exactly why we can give a liberal interpretation to the Section 183 because nowhere in the world have two statutory rape provisions in a single Criminal Code. And thus, Section 183 is never to be construed as a statutory rape, and of course, it obviously is not. And arguing in a similar fashion, the term ‘statutory rape’ itself is an old terminology and many criminal statutes do not use this term anymore.

That’s not an exclusive reason for my argument to maintain that the provision on the rape of a child above the age of twelve years needs liberal interpretation. The law should serve the purpose, and the purpose of Section 183 is essentially to prevent child marriage and teenage pregnancy. The question here is, does criminalising the minor consensual sexual behaviour prevent child marriage and teenage pregnancy? I provide the following facts and figures to answer this question.

Bhutan Living Standards Survey Report 2012 indicate that criminalising or imprisonment does not deter young people from getting married. About 60% of women aged 15-49 years reported having been given birth at some point in their lives, and teenage pregnancy is 4.1 times more likely in the rural areas than in the urban areas. In the age group of 15-19 years, 5.7% (9.0% females and 2.2% male) are either married or living together twelve months before the time of the survey. Overall, about 2% of teenage women in this age group gave birth in the 12 months before the survey interview.

At the same time, Bhutan Multiple Indicator Survey 2010 indicate that about 31% of women aged 20-49 years reported having been married (or having entered a marital union) before the age of 18. Moreover, 15.2% of women aged 15-19 years are currently married or in a marital union, with a higher percentage of women in the rural areas (21%) compared to urban areas (6%). The report also identified that 8.5% of women aged 15-19 have already had a birth, 2.5% are pregnant with their first child, thus summing up to 11% have begun childbearing. 0.5% have already had a live birth before the age of 15.

Among the women aged 20-24 years old, 15.3% have had a live birth before 18 years of age. Early childbearing decreases with wealth and education, thus it is almost 10 times more common among women 20-24 years old with no education (24%), compared with women with the secondary plus (2.7%). Early childbearing is more common in rural areas (18%) and in the Eastern and Central regions (18.7 and 18.1) respectively. The percentage of women with live birth before the age of 18 has remained relatively unchanged over the last 25 years.

These figures seriously confront ethical, legal and scientific dilemmas. If we are to implement and interpret the law as we do at present, State should have been forcefully divorcing every young mother and prosecuted their spouse for rape, but they did not. Few unfortunate young people end up in the hands of the law implementing agencies and they are caught, prosecuted, convicted and get divorced. But on the other hand, the child marriage and sexual activities amongst the youths are living realities. Interestingly, a study conducted by the Department of Youth, Culture and Sports (DYCS) in 2000 revealed that 58% of adolescents’ boys viewed sexual activity as a natural process and were sexually active. If that is the case, may be Section 183 is asking to change the natural phenomenon and the biological behaviour of our young adolescents. It is a mere impossibility on our part to criminalise our youths while they resolve to fulfil their biological needs and nature calls. But certainly, we can prevent them from engaging unsafe sexual behaviours through adequate literacy and advocacy programs which will ultimately prevent teenage pregnancy.

Also, if we clearly examine the above facts and figures, child marriage, teenage pregnancy and childbearing are maximum in the rural areas. If we realise the reason associated with it, I can only think that it is grossly associated with the poverty, education, information, and other social, economic, cultural and religious norms playing a central role. Thus, the child marriage and teenage pregnancy are the by-products of our failure to provide adequate information, legal empowerment, economic opportunities, and alleviate the poverty. Because of our failures, criminalising them does not make any sense.

I also like to argue, for apparent reasons, that the Parliament needs to amend the Section 183 to solve the problem. But when the Members of Parliament does not have an adequate and formal legal knowledge, and when they do not have sufficient reading time with 200+ days constituency visit, I would like to presume that this law is going to remain as it is for a longer period of time. I can only sympathise and empathise for our young people because their body, until the age of 18, is the property of the State, and they do not own themselves for any exposition.

But our ultimate hope lies with the Judiciary. When the application of the laws does not bring the intended results of justice and fairness, the judiciary can interpret the law and ask the parliament to do their job. It is similar to what the Supreme Court has said in the recent SP+ case, basically asking the legislature to make the law as deem appropriate. And this does not, in any perspective, amounts to usurping the power of the legislature. After all, the law is what the Court says as per the grundnorm.

While stating thus, we should not hesitate to borrow the international best practices keeping in mind various socio economic and cultural factors. Accordingly, I would like to provide some of the best practices on this subject matter from the perspectives of other jurisdictions. This will help us understand the reason for my proposition to change the law. It will also develop a clear idea of what and how we should be doing.

In the United States, the age of consent ranges from 16-18 years (see here) with a ‘close-in-age exemption’. In the United Kingdom, the age of consent is 16 years regardless of sexual orientation or gender. In Canada, the age of consent to sexual activity is 16 years of age (see here) with a close-in-age exemption. Likewise in Australia, the age of consent for sexual activity is 16 years (see here). In India, the Criminal Law (Amendment Act) of 2013 has raised the age of consent to 18 years for many reasons. This raise of the age of consent to 18 years in India has considered ‘an orthodox country in the world’ by the BBC Report. Thus, the global average age of consent is 16 years, and Bhutan obviously is one orthodox country if we were to be assessed by the BBC reporter.

Let us further look at some provisions on close-in-age exemptions.

The Canadian criminal justice system allows a 14 or 15-year-old girl to freely consent to sexual activity as long as the partner is less than 5 years older provided there is no relationship of trust, authority or dependency or any other exploitation of the young person. Thus, in Canada, a 14-year-old girl child can consent to sexual intercourse with her 19-year-old partner. Similarly, it is not a criminal offence if a young person 12 or 13 years of age can consent to non-exploitative sexual activity with peers if the age difference is not more than two years. Thus, a 12-year-old child is deemed capable of consenting to sexual activity with a 14-year-old, but not a 15-year-old.

In the United States, the age of consent (in many states) depends on one or more of the following factors:

(i) Minimum age requirement: In New Jersey, the age of consent is 16, but individuals who are at least 13 years of age can legally engage in sexual activities if the defendant is less than 4 years or older than the victim. It is not a crime if 14 years old girl consents to sexual intercourse with 18 years old boy in New Jersey. It is similar to the Canadian criminal justice system.

(ii) Age differential: In the District of Columbia it is illegal to engage in sexual intercourse with someone who is under the age of 16 if the defendant is 4 or more years older than the victim. Under this law, the age of consent is 16, however, the children under the age of 16 can engage in consensual sexual activity provided that the defendant is not 4 years or older than the victim. Thus, the consent of a 14-year-old girl to her 18-year-old boyfriend is not a rape under this law.

(iii) Age of Defendant: In Nevada, the age of consent is 16; however, sexual intercourse with someone who is under 16 years of age is illegal only if the defendant is at least 18 years of age (the age at which the defendant can be prosecuted). This provision provides the age thresholds for defendants below which individuals cannot be prosecuted for engaging in sexual intercourse with minors.

(iv) Age of Victim: In Ohio, sexual intercourse with someone under 13 years of age is illegal regardless of the age of the defendant. However, if the victim is above this minimum age requirement (13) and below the age of consent (16), it is only illegal to engage in sexual intercourse with that individual if the defendant is at least 18 years of age.

When I provide these information, I do not endorse or advocate that our law should be exactly the same as theirs. My principal purpose of providing them here is to let us know how the provisions are incorporated in other jurisdictions. As we have seen, the law differs from State to State within the United States itself.  Their laws must be designed based on their practical realities of each State, and we have to design our own laws that best serve the practical realities of our society. Whether the present law serves the practical reality of our times is the core issue that we need to answer either through legislative intervention or through judicial activism. The 2011 Amendment of the Penal Code has introduced Romeo and Juliet Clause within the Section 183 (in the second para) essentially providing that sexual intercourse between the children of 16 to 18 years as not rape. This is a close-in-age exemption in our context borrowed from other jurisdictions, but this did not solve the entire problem in the absence of consent clause. We need to look even much deeper and set the minimum age of consent. Perhaps, as I have argued, I would like to believe that Sections 181 and 183 is not one and the same and the later should not be read as statutory rape.

The matter of truth is that the child of the same age group folks together. For instance, the youth of the same age group, let’s say 16-20 years of age, will like to play together, study together, eat together, party together, and they spend most of their time together. When they are together, many things happen without our notice and we cannot be justifying to say that they should not be doing things together. That was exactly what happened in the case of Office of the Attorney General v. Sonam Phuntsho. And on the other hand, the relationship of a minor girl with her teacher, guardian, or someone not within their age group can be treated differently. Obviously, a 15-year-old girl agreeing for sexual activity with her 19-year-old basketball coach does not fall under the purview of free consent because there is no balance of power between them and the influencing power of her coach is at the maximum height. Indeed, the facts and circumstances of the case play a major role in determining the cases.

Essentially, we need to ensure that the law does not bring unnecessary spillovers to the society. As reading is the principal source of information, I am really inspired by the Criminal Code of Canada 1985, to be honest. I am certainly sure many of us will be motivated to read the practices from other jurisdictions and get as many information as possible. Because for Bhutan, the age of consent needs to be set, and Section 183 needs to be amended accordingly. If not the Parliament, ultimate hope lies with the Judiciary.


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