Bombay HC Judgement: The Question of Childhood, Intent and Sexual Abuse

Trigger warning: This article contains details of sexual assault and rape. 

On this National Girl Child Day, January 24, I woke up to a baffling ruling by the Bombay high court:

“The act of pressing of 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 top and pressed her breast, would not fall in the definition of ‘sexual assault’. It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code.”

The ruling came in the context of the acquittal of a man who was charged under Section 8 (punishment for sexual assault) of the Protection of Children from Sexual Offences (POSCO) Act. The accused had reportedly taken a 12-year-old to his house under the guise of giving her guava. Upon reaching his house, the accused pressed the child’s breast and tried to remove her salwar. However, the mother of the child reached his house and rescued her daughter. While the accused was convicted by the trial court under POSCO Act and the IPC, he challenged his conviction in the high court.

The key question which the high court seemed to be grappling around was whether pressing the breast of a child without removing the shirt and without any ‘skin to skin contact’ could fall under the category of ‘sexual assault’ as defined under POSCO. The court stated that “pressing of the breast” could be devoid of any sexual intent, which could only be defined through a unidirectional vocabulary of “touch” – if the accused ‘makes the child touch the vagina, penis, anus or breast” – which the court of law identifies as some characteristics of “sexual intent”. Justice Pushpa V. Ganediwala further noted a need for a “stricter proof” and “serious allegation” to carry out such convictions due to the “stringent” nature of punishments of such offences.

The acts of rape and particularly sexual assault among children are grossly underreported in India. This underreporting stems from two braided reasons: firstly the fear of societal alienation for both the survivor as well as the family and secondly, the lack of knowledge around what counts as ‘good touch’ or ‘bad touch’. The Bombay high court’s ruling sets a dangerous precedent for the two above mentioned reasons since the ruling seems to imply that children are expected to understand or even experience only ‘skin to skin’ touch as sexual assault and perhaps pushed further towards overlooking the casual groping of their bodies both in private as well as public spaces, especially within families.

Also read: Telling Your Parents Your Child Sexual Abuse Story

In a country like India, where reporting cases of sexual assault is rooted in deep stigma, this ruling in itself disregards the multivocal nature of sexual transgression, which is predominantly inscribed on the bodies of women through acts of sexualised gaze, groping, sharing or showing inappropriate media content to children. Moreover, the ruling states the presence of ‘intent’ as a precondition for classifying a transgression as sexual assault. However, as mentioned earlier, the accused groped the child’s breast and even tried to remove her salwar. How does that not count as ‘sexual intent’?

Writer Rituparna Chatterjee’s recent memoir of childhood abuse provides an intriguing account of how ‘touch’ by ‘uncles’, who revealed their friendly nature by casually pressing her arm, holding her painfully to their chest and even placing the other arm tightly on the thigh, spread their tentacles in her everyday being of her childhood. Similarly, if one were to recount the experiences of abuse and sexual assault faced by children within their own houses under the pretext of ‘kisses on cheeks’ by a family friend or asking a child to sit in the lap of an uncle, which furthered into the violation of the bodies of children, often translating into lifelong experiences of abuse by their ‘own’.

How does the court then expect the child to be a bearer, witness and as well as a provider of evidence of the sexual transgression they have been subjected to? Moreover, how does the court expect the child to be a mouthpiece of the accused’s intent towards them? Are we trying to normalise groping of women in both the private as well as the public realm because the question of intent – especially in cases of sexual assault within families where sexual intent is often disguised under the veil of ‘affection’, ‘care’ and ‘love’? Could this ruling be read as an attempt to delegitimise the trauma of lakhs of women who have and continue to be groped by strangers in public spaces?

The hierarchisation of ‘certain’ sexual transgression over others not only reduces the bodily and mentally scarring experience of sexual abuse to mere hollow legal categories which are created by judicial order and for the lawmakers of this judicial order, but it also shifts the onus of proving the act of ‘non-skin to skin touch’ and sexual transgression on the child. Just like the act of sexual transgression, one could thus posit that under the guise of providing justice to child sexual assault survivors, the creation of such rigid and blind legal jargon in itself is a violent project exercised by the court of law, perhaps, a mirror of our very own social reality itself.

While this judgment has to lead to a mass outrage about the legality of this ruling, I cannot help but grapple with the structural and sociological concerns pertaining to the judicial horror which the court facilitates by not merely sexualising the body of the child but also by effacing and placing the childhood experiences of sexual assault outside the ambit of ‘heinous crimes’ by reenacting the ‘natural desire of men’ within the grammar of judicial reasoning.

Neymat Chadha is an aspiring anthropologist and a doctoral student at Indian Institute of Technology, Delhi. Her areas of interest lie at the intersection of illness, reproductive labour and political economy in India. 

Featured image credit: Pariplab Chakraborty