By Arré Bench Jan. 27, 2021
The Supreme Court has stayed the “disturbing” order by the Bombay High Court that stated groping without “skin to skin” contact cannot be considered sexual assault. But how do we put an end to such terrifying interpretations?
Last week, in a terrifying order, the Bombay High Court stated that the groping of a minor cannot be considered sexual assault without “skin to skin contact” or if clothes were not removed. The shocking judgement, unfortunately by a woman judge, Justice Pushpa Ganediwala triggered a massive public debate with criticism pouring in from all quarters. On Wednesday, thankfully, the Supreme Court put the order on hold.
Attorney General KK Venugopal filed a petition against it, stating that the order was disturbing. “Attorney General has brought to our notice the judgement… in which the High Court has apparently acquitted the accused under Section 8 of POCSO on the ground that the accused had no sexual intent in committing the offence because there was no direct physical contact – skin to skin. The Attorney General submitted that the order is unprecedented and likely to set a dangerous precedent,” the Supreme Court said.
The jail sentence of the 39-year-old man for groping a 12-year-old that was reduced by the High Court was also put under hold. In its January 19 judgement, the High Court had stated that groping a minor’s breast cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act. While the Supreme Court has done the right thing, and in a timely manner to their credit, it is time we redefine and improve our understanding of sexual assault as a society.
Sexual assault is sexual assault, whether clothes are on or off.
Section 7 of the POCSO Act, defines “sexual assault” as, “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration, is said to commit sexual assault.” As Dilip D’souza pointed out in his piece for Scroll, “It’s one thing that the language in the POCSO Act makes no mention of “skin to skin” contact (the word “skin” does not appear anywhere in the Act). But I’d love an explanation – I imagine hundreds of millions of women would, actually – of how, when a man grabs a woman’s breast as Ragde did this girl’s breast, it is actually not direct physical contact.”
Would any victim state that only their clothes were touched and not their breasts? The degree of harassment isn’t diluted just because one’s clothes are on. Are we setting a precedent, or dare I say, setting a precedent that people can grope and touch, and it won’t be sexual assault as long as clothes are on? “Any person who values their bodily integrity would agree that the ‘sexual’ nature of an assault is not dependent on whether or not there was a barrier of clothes between the hands of the victim and the assaulter,” said Mani Chander in The Times of India. The POCSO Act must do away with this ambiguity and prevent instances of literal interpretations in the future just.
Sexual assault is sexual assault, whether clothes are on or off. It is appalling that the Act didn’t explicitly make that distinction, and even worse that a Judge of the Bombay High Court chose to interpret it in a very narrow sense when all the facts in the case clearly alluded to sexual assault. As the Supreme Court revisits the case, it must nail down the problem and ensure there’s no future misuse. It is about time that the Court sets the record straight.