BackRape laws in the land of happiness
Rape as a fourth-degree felony has not been an effective deterrent in Bhutan. The minimum imprisonment term should be increased
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One of the most recent debates on rapes in Bhutan was triggered by a rape story carried by the national newspaper Kuensel on 23 May. Mercifully, the debate centred less on victim-shaming and more on what was taking place in court.
The office of the attorney general (OAG), which was prosecuting on behalf of the survivor, had asked for compensation not only for the woman but also for her husband. According to a blatantly sexist section in the Marriage Act of Bhutan, the husband needs to be compensated too. This was an additional penalty called for with good intentions by the OAG, but in utter bad taste.
The Marriage Act of Bhutan came into being in 1980. It was amended in 2009 by parliament. What riles me is that our parliamentarians—and there were women in parliament—did not see any need to amend Chapter 3 of the Act, which has several sections according special financial privileges to men in the case of adultery even if the title is “Payment of compensation (Gawo) because of husband or wife being involved in adultery".
About 80% of the chapter outlines compensation for the fault of the woman, not the man. Here’s section Kha 3-5: “If any married woman conceals the fact of her marriage and commits adultery with a third person, then that person shall have to pay compensation to the husband of that woman as prescribed by law. But if proof is furnished that the adultery was committed because of enticement on the part of that woman, then that woman shall be punished with fine extending from Ngultrums one hundred to Ngultrums three hundred." (ngultrum is pegged to the Indian rupee, and amounts to the same.)
Another section, Kha 3-9, says: “If a married man without contracting a marriage with another woman only keeps her as his paramour (ARO-GARO), then in such a case, the wife of that man shall not be entitled to claim any compensation."
Adding insult to injury, the rapist will get only three to five years in prison according to Bhutan’s penal code. Except for statutory rape and gang rape, all other forms of rape, such as rape of a married woman, rape of a pregnant woman, custodial rape, and marital rape are fourth-degree felonies that carry three to five years of imprisonment. Statutory rape, classified as a second-degree felony, leads to a maximum imprisonment term of 15 years, and gang rape, a third-degree felony, gets nine years.
The penal code was enacted in 2004 and amended in 2011. It is disappointing that the first democratically-elected parliament saw no reason to amend Chapter 14 of the penal code concerning sexual offences when it was discussed in parliament.
Bhutan of the 21st century, which prides itself on being better than many countries in the region when it comes to women, should not allow courts to compensate a rape survivor’s husband and dole out light rape sentences. Instead, the survivor should be fairly compensated, the focus should be on the provision of medical services for rape survivors such as post-trauma care, and on ensuring the survivor’s right to a dignified life after the ordeal.
We have the National Commission for Women and Children and a non-governmental organization (NGO), RENEW, that try and address women’s issues and provide counselling services, but there are no special services designed for rape survivors and no official support groups.
Kuensel’s rape story was a reality check. It sounded the alarm on extremely archaic and bigoted laws, many of which have been “borrowed" from colonial-era India and other countries. It is high time lawmakers and parliamentarians revisit these laws.
The editorial in Kuensel on 26 May, which followed the rape story and the social media outrage, read: “Court officials said people aggrieved by the law should write to their representatives, who would then put it up in the parliament for discussion and amendment. ‘They could also a file petition,’ a legal practitioner said."
I hope we do this. But I also hope our elected representatives, many of whom have been privy to the rape conversation and have even agreed on social media that our current laws on rape need to be changed, will proactively plan another amendment to the marriage Act as well as the penal code.
The lower house elections are due later this year. Bhutanese voters who care about amending rape laws ought to support political aspirants who show some gender sensitivity. The upper house has just been formed as well. The time is ripe for change.
There have been media reports of rape and molestation almost every month since the start of 2018. These are the reported cases. Many cases go unreported because of victim-shaming and the resultant stigma.
Rape as a fourth-degree felony has not been an effective deterrent in Bhutan. We need the minimum imprisonment term to be increased. We need more Bhutanese to make noise about gender-insensitive laws. Only then can we begin to be who we think we already are: a gender-equal Bhutan.
Namgay Zam is an independent Bhutanese multimedia journalist passionate about gender, social justice and mental health.
This is part of the Young Asian Writers series, a Mint initiative to bring young voices from different Asian countries to the fore. Comments are welcome at theirview@livemint.com
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