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Mumbai HC judge Pushpa Ganediwala rules that “mere groping is not sexual assault, unless it is skin on skin contact”, setting back the struggles to define sexual violence against children.
Trigger warning: this contains graphic description of sexual violence against women, and could be triggering to survivors.
Yesterday, on January 24, 2021, Mumbai High Court Justice Pushpa Ganediwala while modifying the conviction of a man charged with sexual assault of a 12 year old, made a bewildering ruling,
“As such, there is no direct physical contact i.e. skin-to-skin with sexual intent without penetration. The act of pressing the breast of a child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside her top and pressed her breast, would not fall under the definition of ‘sexual assault’,” she pronounced while adding, “it would certainly fall within the definition of section 354 of the IPC, which penalises outraging the modesty of a woman.”
The ruling also said that ‘mere groping’ will not fall under sexual assault.
When I was in Class 1 or Class 2, the school PT teacher would squeeze my non-existent breasts, painfully hard, regularly but over my clothes. There was no skin on skin contact.
When I was 8 years old, a relative slipped his hand under my dress to grab my crotch. There was no skin on skin contact.
When I was 13 and travelling by bus, a man reached from behind and grabbed my breast and squeezed hard, there was no skin on skin contact.
When I was 16 and walking back home from tuitions at 7pm, a man darted across in the semi-darkness and grabbed my breast. But there was no skin on skin contact.
My daughter was 12, when she began developing breasts and men and boys would comment and remark on them, or brush against them. Consequently she learnt to round her shoulders, and walk with a stoop to avoid calling attention to herself. 9 years later I’m still trying to get her to correct her posture. There was no skin on skin contact.
I can go on and on, I have missed several dozen other instances. But these were all my memory would allow me to access without collapsing in a blubbering heap. As it is, my throat is constricting, my heart is hurting and my head threatens to explode in rage.
But the esteemed high court judge, (who sounded borderline pervy) was wondering if the top had been removed, or the breast had been ‘pressed’ by inserting the hand under the top, or if ‘skin had touched skin’.
No, dear esteemed judge, skin didn’t touch skin in the instance of the 12 year old child, and nor in any of my experiences. But my childhood, my humanity, my agency were snatched away from me along with my innocence and my child’s innocence.
Decades later these crimes against my body and my emotions still bear fruit when I walk these streets of my city, my body on high alert, wondering when someone might touch me, not skin on skin, a manner not amounting to sexual assault. In your dismissive, patriarchal and condescending view, merely outraging my modesty.
Justice Ganediwala also said, “The basic principle of criminal jurisprudence is that the punishment for an offence shall be proportionate to the seriousness of the crime”. You had clear guidelines, the sexual assault under the POCSO (Protection Of Children From Sexual Offenses) Act involves committing assault with sexual intent and getting physical without penetration by touching the private parts of the child or making the child touch the private organs of the accused, noted the judge in the court hearing.
The offender in this case had lured the child, CHILD, not a woman whose modesty was being outraged, but a child, to his house on the pretext of feeding her some fruit and there he sexually assaulted her. Had the mother not arrived there in time, he would have perhaps raped her. The letter of the law is exceedingly clear, touching a child without consent amounts to a crime and yet the Judge needed to interpret the law to suit whom? The perpetrator, whose jail time was in any case a mere 3 years will now be reduced to 1 year. And how long will the child endure the scars of the trauma- a lifetime.
One of the hardest things for a victim of sexual offenses is if anyone will ever believe her. I never reported any on the crimes that were wrought on my body. If in 2021 on National Girls Child Day a high court judge decides that groping is not sexual assault, and that sexually assaulting a child is merely groping, I know now that I was right in not disclosing them.
Image source: Anemone123 on Pixabay
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