This article appeared in Kuensel on weekly legal column on 15 Feb 2020
A Kuensel news reported last week reported “A twist in the tale with a happy ending”. This kind of news is a wakeup call for our parliamentarians. The current provisions on rape is not only confusing but also does not take into the account the actual issue. Particularly, Section 183 of Penal Code of Bhutan was enacted to punish the rapist but instead deprived the rights of father and the right to sexuality. The courts have been convicting any person who are charged for rape only because of S. 183 irrespective whether the rape occurred or not. This because, Courts had to use ‘age’ as a factor in conviction and not the rape. The parliament has failed to define what is ‘rape’ under S. 183 and instead, defined age of consent. In fact, the actual definition of rape remains mystery in the PCB. S.177 of PCB only lays down the conditions under which the rape can occur.
For example, in Indian Penal Code (IPC) defines rape as (a) penetrating the vagina, the anus or urethra of any person with any part of the body of another person, or an object manipulated by another person except where such penetration is carried out for proper hygienic or medical purposes, or (b) manipulating any part of the body of another person so as to cause penetration of the vagina, the anus or urethra of the offender by any part of the other person’s body or (c) introducing any part of the penis of a person into the mouth of another person; or engaging in cunnilinggus or fellatio; or circumstances falling’. The IPC then provides conditions under which rape can occur similar to S. 177 our penal code.
Similarly, International Criminal Law defines rape as when ‘the perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body’. And then, it lays down conditions like IPC. On the consent, in a landmark case of Bemba, the ICC stated that, “victim’s lack of consent is not a legal element of the crime of rape’ and the law’s requirement to prove the victims non-consent ‘would, in most cases, undermine efforts to bring perpetrators to justice”. The existing concept of consent under PCB is vague and only provides conditions under which consent may be obtained. Further, if consent is used as only factor in rape, the burden of proof will fall on the victim to prove that, it wasn’t consent instead of rape.
Therefore, our legislature has derailed the definition of rape and instead inserted age as factor of defining rape. Such unintentional in the past. As a result, many innocent citizens are incarcerated even though the courts, statute made victims themselves or whole society know that, it wasn’t rape. Age may be used only to determine the severity of the penalty such as heavier penalty rape of minors than adults and shall never be used to define rape. Until, our legislature concedes their mistake, rectified their errors, many more innocent lives will languish behind the bar for years. Any children born will grow without their father for years.
Sonam Tshering
Lawyer, Thimphu
Disclaimer: The views expressed in this article are author’s own.
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