The Mumbai High Court Judgement Is Partly Our Fault.

The Mumbai High Court recently overturned the sexual assault judgement of a sessions court in Nagpur stating that under the POCSO Act sexual assault must entail skin-to-skin contact. Expectedly this has led to outrage across the nation, but how is this judgement any different from the lessons we teach our daughters about what sexual assault is “serious enough” to merit noise?

Written by Aarushi Ahluwalia.

After the Mumbai High court issued the judgement that deemed groping an underage girl through her clothes does not amount to sexual assault (but to the outrage of modesty) under the POCSO Act (Protection of Children From Sexual Offences, 2012), women all over the country led by feminist and child rights groups have been outraged. The Supreme Court has stepped in and stayed the order passed by the Mumbai Court for the time being. There have been calls for stricter punishments to sexual offenders as well as endless Facebook rants about how women are treated in this country. As always, this will die out, the case will continue to be deliberated for a while, but the outrage will die out (for instance, anyone still working on having Rekha Sharma sacked from the NCW? Thought so). Incidental outrage is unreliable (though sometimes effective) and part of the reason why justice is so hard to come by in our times, but there is a bigger reason why cases like this one lead to judgements that cause outrage or re-deliberation instead of clear answers. There is another reason why justice does not prevail: Ambiguity in the law.

In the case of the verdict by the Hight Court in Mumbai as pertaining to this incident, ambiguity has led to it passing through several rungs of the judicial order ending up in the Supreme Court. Originally the case, based on an incident from December 2016, was heard in the sessions court in Nagpur where the accused was sentenced under Section 7 of POCSO for sexual assault and Section 354 of the Indian Penal Code (IPC) for outraging the modesty of a woman. He was to serve concurrent sentences of three-years and one-year respectively for both offences.

Under Section 7 of POCSO, 2012, sexual assault is defined as an in which someone “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.” It is important to note that clothing is not as much of a criteria as sexual intent, and sexual intent can exist with or without clothing. If a person intends to sexually assault another, the intention supercedes opportunity. For instance, men touch and grope women in buses, and many would if they could, undress the women, but due to the lack of opportunity or fear (perhaps) are unable to do so, but the lack of opportunity does not diminish the intention behind the act. Perhaps in recognition of this fact, the sessions court convicted the accused under Section 7 of POCSO. The accused did not touch the child without sexual intention, like an accidental graze or a medical examination, instead there was definitive sexual gratification and even conspiracy to isolate the child by calling her inside his house to give her food.

The other conviction, under Section 354 of the IPC pertains to outraging the modesty of a woman. Modesty has existed as a term defining sexual offences for over a century and was instituted into the IPC around the same time as the term rape (which was added in 1860), but it was not defined by the law until a supreme court order in 2007. Prior to that order, and the institution of POCSO, several child molesters were acquitted based on the technicality that a child is incapable of modesty, therefore incapable of having their modesty outraged. The law around modesty unlike sexual assault, assumes and necessitates a female victim, and does not require sexual intent to convict. The modesty of a woman does not necessarily constitute her body, as much as the virtue of modesty. Whether the accused garners sexual gratification is irrelevant so long as he is aware that the act committed will constitute an outrage of modesty. But, what is modesty? An undefined quality for many years, it gained a rather ambiguous definition in 2007 when the Supreme Court described it as “The essence of a woman’s modesty is her sex.” A nonsense definition that has no meaning, in my opinion. In a case pertaining to the judgement that led to this definition due to conflicting verdicts from various courts, the Supreme Court ruled that “pulling a woman, removing her saree and making a request for sexual intercourse” would constitute (but is not exhaustive in terms of) an outrage of modesty. By order of the sessions court in Nagpur, the accused (hereafter referred to by name, Satish), was convicted under both section 7 of POCSO and section 354 of the IPC.

Then the Mumbai High Court stepped in.

While the high court upheld the conviction under Section 354 of the IPC, it acquitted the accused under Section 7 of POCSO essentially saying that as a woman, the twelve-year old was sexually violated, but as a child, there was no crime committed against her. The High Court deems that “considering the stringent nature of punishment provided for the offence (under POCSO), in the opinion of this court, stricter proof and serious allegations are required. The act of pressing of the breast of the 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 the top and pressed her breast, would not fall in the definition of sexual assault.” The part of the definition they take issue with is not “sexual intent” but what constitutes “physical contact”. According to the bench, physical contact must be skin-to-skin in order to qualify as sexual assault which raises many follow up questions. For instance, what if a perpetrator touches the bare skin of a child with gloves on? Is that physical contact? What if the perpetrator has a fetish for ejaculating on the underwear of a minor? Is that sexual assault? What if the perpetrator has the victim dress up in lingerie and only touches them through it? Is that physical contact? What if the perpetrator wraps the victim in cling film before touching them? Have they contacted them physically? Perverts and predators are limited only by their imagination and the law, and seeing that there is a workaround when it comes to sexual assault, will only embolden their creativity.

And the Supreme Court agrees.

A bench constituting the Chief Justice of India, S.A. Bobde, has stayed the verdict after the Attorney General (AG) K.K. Venugopal mentioned the matter, calling the judgement of the High Court, “unprecedented and likely to set a dangerous precedent”. It would too, because the average person does not delve too deeply into the technicalities of the law, or its exact purview, focusing instead only on the headline. It’s not wise, but it is true, and the headline here insinuates that if you touch a minor over their clothes, you could get away with it. There might not even be a crime to speak of. That’s a dangerous precedent. The addition of the idea that clothes need to be removed or skin-to-skin contact ascertained for a crime to qualify as sexual assault will be used in future cases to exonerate men like Satish.

That being said, clarity in the law would require drawing up lines and classifying crimes by seriousness, nature and punishment. It is unfortunate, and uncomfortable, but not all sexual crimes are equal. In the past we have drawn some lines. Modesty now can be violated in children. Rape is now defined as penetration with or without ejaculation. We no longer stick two fingers in women and base the veracity of their rape claims on whether they flinch. Hoorah. Yet there is a question that lingers, and one that we do not ask because of what it may say about us as people: At what point does a sexual misdemeanor turn into sexual assault? Is cat-calling the same as groping? Is groping the same as licking? Is violent attention to genitals the same as manual stimulation? Do death sentences and longer imprisonments lead to lower rates of crime? Are there distinctions in sexual crimes that should be instituted into how they are treated by the law? As uncomfortable as it may be to determine or even ask to determine this point, if we do not do so, judges get to apply it on a case-by-case basis leading to bizarre ideas like skin-on-skin contact is what constitutes assault.

Honestly, I am torn about these questions. On the one hand the culture of violent sexual entitlement by men in India is so rampant that I feel like all of it should be dealt a harsh hand. On the other hand, I don’t think anyone should spend 19-years in prison for a loaf of bread. Incarceration doesn’t always lead to a life of rescuing prostitutes and moral turnarounds. It’s true that the nature of the crime does not necessarily dictate the extent of the trauma suffered by the victim and in that regard all sexual offences are as serious as the other. It’s also true that the harsher the penalities for sexual crimes, the more creative the defences employed against them. In fact, after instituting the death penalty for cases of gruesome rape that result in death, violent gang-rape has increased by 30%. Longer prison sentences do ensure that predators are put away from society (and it ties to the rationale that the more predators we put away, the safer we make the world outside prisons) but they do not ensure that when these people rejoin society they will have experienced a change in morals or lost criminal intent. To make the world a safer place for women, we have to make the law clearer, that’s for sure, but we also have to ensure that the judgements of the law have the intended impact.

We have to acknowledge that for every case like Nirbhaya and every judgement like the Mumbai High Court that shocks us into outrage either by the nature of the violence or the audacity of the verdict, there are hundreds of cases that go unnoticed, undiscussed, unreported and dozens that result in dismissal or acquittal. We ourselves do not treat every case of sexual violence as equal and that is evidenced by our selective outrage. For every protestor that knocked down a barricade for Nirbhaya, there is a Mr. Negi who has spent years at Jantar Mantar waiting for a judgement on his daughter’s murder after she was raped, mutilated and bled to death over the course of three days in February 2012. For every outraged person calling out the high court right now, there is a woman who is silently dealing with the trauma of being touched by a relative or passer-by and told by their parents that this happens to everyone and it’s not so serious, which is essentially exactly what the court said.

If the law of a land reflects the ideology of its citizens then ours is saying something dire about us. It is saying we care, sometimes, depending on the situation. It is saying we want women to be respected and safe, but we don’t want to get into the details. It is saying that we cannot take the assault of every woman too seriously unless it is shocking enough to move us. It is saying we would rather make an example out of one person than address the reality of the culture of rape around us. Our courts speak for us, and it is important to check them when they say something fucking ridiculous, but what have we been saying? What do we say and feel when no one has been raped and nothing is making the headlines? That’s important too.