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Nyinda Legal Consultancy

Lawyers say consensual sex between minors should be legal, citing a scenario of a 16-year-old girl and a 17-year-old boy, the lawyer said that girl and boy with the above age difference can legally consent to sexual intercourse under Article 183 of the PCB (Amendment) 2011. He explained that there are certain conditions, such as whether the sexual act was violent or not, or whether it was committed after the victim`s intoxication, to qualify it as rape. However, he said the penal code defines sexual intercourse of any kind as rape. “If both parties are minors, their consent may not be valid in the eyes of the law and may need to be amended if necessary. But if not, I don`t see any discrepancy in the law,” the MP said, adding that it was necessary to amend Article 181 to ensure that a minor consent is not consent under international CRC law. The 36-year-old from Nanong Gewog said it was the shortcomings of existing laws and parliament`s inability to address them that prompted him to enter the race. A lawyer from the Nyinda law firm said that with regard to consensual sexual relations between minors, the accused should not be punished under Article 184 of the PCB, which classifies the crime of raping a child over the age of 12 as a second-degree felony. A Thamphu lawyer, Sonam Dhendup, will run in Pemagatshel in the upcoming National Council (NC) elections. “After one year, when the girl reaches the age of 17 and the boy reaches the age of 18, the application of the same article of the law takes a different turn and the boy is held responsible for the rape of a child over the age of 12, thus destroying the very intent of the law,” he said, adding that sections 181 and 183 of the 2011 PCB should be read and interpreted differently. He also stated that if the intent of laws is always in the interest of society and the people who live in it, the severity of the punishment imposed by laws must be rational. “The discrepancy in the law that I see is that there is no clear segregation based on both situation and gravity,” he said, adding that there were good intentions, but that it was not clearly articulated in the regulations. Sonam Dhendup successfully fought the Spasmo Proxyvon Plus (SP+) case earlier this year, in which a Supreme Court ruling led to the release of 554 detainees. Sonam Dhendup said he had come across many legal provisions that would require immediate changes.

Attorney Tashi Delek suggested repealing the “rape of a child over the age of 12” provision, and then amending the “lawful rape” provision to raise the age limit to 15. Under article 183, an accused is guilty of raping a child over the age of 12 if he or she has sexual intercourse with a child between the ages of 12 and 18. “Maybe we are party to international conventions that require us to have laws regarding the protection and care of children, but that doesn`t require us to impose such harsh penalties through laws,” he said. As soon as we notice Facebook visitors on the shared place, it will be promoted for FREE for 3 months! Lawyer Tashi Delek also stated that there was no need to have a separate provision on “rape of a child over the age of 12” under Article 183, as there was no difference between such a provision and the provision of Article 181 on “lawful rape”, apart from the fact that the qualification of the offence under Article 183 was less severe. Sonam Dhendup is currently on an initiation tour in his Dzongkhag. A lawyer in private practice, Tashi Delek, said an ideal situation to address this issue is to try to give Article 183 a broader meaning and interpret it as criminalizing consensual sexual relations that do not fall under legal rape. “This argument is based on the fact that legal rape is defined separately in Article 181. There is a need to reconcile criminal law provisions on rape, especially with regard to children,” he said. Article 183, as it stands, seems to have opened a Pandora`s box and paved the way for blackmailers to use this article as a bargaining chip in their devious intrigues.

Such a provision also raises the question of the State`s application of public morality. However, even though the judiciary has strictly enforced it, Ritu Raj Chhetri said there was a completely wrong interpretation between the age of majority and the age of consent. The age of majority is 18 according to PCB. “The way the verdict is rendered by the judiciary seems that the intent of the law is not clear,” he said, adding: “We need to highlight and insert a new provision that says that anyone who has sex over the age of 12 with consent is not rape. We need to say this clearly, provided the child is mature enough to understand what is right and what is wrong. Similarly, the chairman of the National Council`s legislative committee, Sangay Khandu, said an adult should be held responsible if he or she unduly exploited a minor`s immaturity or exploited him or her in any circumstances. But if the situation stems from genuine love and marriage, it should not be considered an insult. However, MP Ugyen Wangdi said that anyone, whether a boy or a girl aged 18 and over, does not benefit from the protection of the provision.

“In the case of a boy who turns 18, the law should take note of the timing of the sexual offence case. It must be 17 years old at the time of the event. Therefore, he should not be punished,” he said. Sonam Dhendup, who previously worked with the Anti-Corruption Commission, works with Nyinda Legal Consultancy. He holds a bachelor`s degree. LL.B from the University of Calcutta, India and a degree in National Law from the Royal Institute of Management. Sonam Dhendup is confident that her constituents would evaluate the candidates` key areas of expertise. He said the definition of rape in section 177 of the Penal Code (Amendment) Act 2011 was completely absurd. “I come in with a solid legal background and a wealth of experience as a lawyer. He added that the real purpose of both articles is to prevent sexual acts with a minor and, regardless of how they are phrased, the intent appears to criminalize the perpetrator, whether the act is consensual or not. He said that you have to be familiar with theories about laws and punishments to be a good legislator and be able to discern what you are trying to accomplish with them.

“Having already set the age of consent at 12 under Article 181, another prohibition of the age of consent under Article 183 amounts to ambiguity in statutory rape laws, as it provides for two sets of `age of consent` under the same law,” he explained, adding that removing Article 183 would bring the legal age of rape in line with that of most other jurisdictions. Following the criminalization of many young people for the criminal prohibition of sexual intercourse with a child between the ages of 12 and 18, some lawyers believe that certain sections of the Bhutan Penal Code (PCB) 2011, particularly offences for consensual sexual relations with minors, should be interpreted differently. The would-be candidate said it was not an easy task to legislate. “Such absurdity in the provisions of our laws affects us all. I am fighting to become a legislator,” he said. Sonam Dhendup also said that Bhutan`s Narcotic Drugs, Psychotropic Substances and Drug Abuse Act 2015, which was amended by the recent closed session, needed to be amended. He said that not only is the sentence monstrous, but that the principle of proportionality is not taken into account in the provisions of the law. He added that if there is consent, it is not rape, but legal rape. It should not be equated with rape if there is consent. “Gravity must be weighed between actual rape and legal rape. Even if it is considered legal rape for the protection of minors, the sentence should be kept on bail and not a crime.

“Article 183 of the Criminal Code, which, according to him, allowed consensual sexual relations between a minor over the age of 16 and under the age of 18, also failed to achieve the intended purpose.” But anyone under the age of 18 is a minor and there is protection that says we have to protect the child for 12 years and under, so with or without consent, it is rape. But more than 12 years with consent should not be considered rape. Internationally, the standard is the same,” he said, adding that Bhutan is a member of the Convention on the Rights of the Child (CRC) and protects children under the age of 15. The chairman of the National Assembly`s legislative committee, Ritu Raj Chhetri, said legal rape of 12 and under is clearly defined in the PCB. “A conviction without recognition as a criminal offence was contrary to the rule of law. I took over the case without charge,” he said.


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