Groping is no longer a sexual assault?
This is incomplete news - the judgement is not wrong on the fronts you think it is!
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Presenting to you an example of ‘How NOT to report a news’ -
Another Example -
In the past week, you must have definitely seen one of your friends expressing how stupid, insensitive and senseless this decision is.
Well, it is.
But that’s not the point.
You see, what we accuse our parent’s generation of WhatsApp forwards, we do the same with Instagram posts/ news headlines.
I’m not saying that this judgment is entirely correct, but your understanding of ‘why this judgment is wrong’ is fundamental for you to criticize it.
Let’s dive into it -
In this particular case,
The headlines are making you believe that the person was not given any punishment.
Fact -
He was given a punishment of Rigorous Imprisonment of One year and a fine of Rs 500.
From the headlines, it appears that the act of groping is no longer a “Sexual Assault”
Fact -
The act of groping a child (from above the clothes) was said to not fall under the definition ‘Sexual Assault’ under the POCSO Act,
BUT
This act was still considered ‘assault to the modesty of women’ under the Indian Penal Code.
The reasoning -
Under POCSO, for an offense to be called Sexual Assault, it is necessary for “Physical Contact” to be present.
According to Justice Pushpa Ganediwala, the facts of the case were unclear - whether the top was removed or whether he inserted his hand inside the top and pressed her breast.
Thus, in this case, the court explained the meaning of the term physical contact.
Said, that due to lack of skin-to-skin contact in groping above the clothes, physical contact cannot be concluded and this action does not satisfy the definition of “Sexual Assault” under the POCSO Act.
Thus, the rigorous punishment of 3 years will not be proportionate to the crime committed.
And held instead he should be given a punishment of one year under Section 354, IPC.
So, what exactly is wrong with the judgment?
In one word - The Interpretation!
Why was there a need to interpret the existing section further?
Section 7 of POCSO says-
“7. Sexual assault – 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.”
The section is pretty clear in itself. But, Justice Pushpa interpreted it further saying that -“There is no direct physical contact i.e. skin to skin with sexual intent without penetration so it cannot be Sexual Assualt under Section 7.”
I mean clearly, the accused was caught removing the salvar of a 12-year-old child, who said that he had pressed her breast BUT since there was no skin-to-skin touch, are we going to ignore his sexual intent?
Let’s also ask a relevant question. Is there a woman in the world who would say of such an event, “He only touched my clothes? He didn’t touch my breast”?
Unnecessary and unacceptable interpretation!
Secondly, why was there a need to jump to IPC?
Lets imagine for a second - The victim was a boy child and he was abused by a person by holding his genitals through the pants (without disrobing him).
Then, according to this present case decision, he will have no remedy in POCSO. And he cannot approach under Indian Penal Code since Section 354 applies only to sexual assault on woman.
Thus this case sets an extremely dangerous precedent as it becomes easy for sexual predators to escape from the clutches of law.
Going a little further,
We decided to check other judgements given by Justice Puspa and found some interesting previous judgements.
In one particular case, the mother of the victim had lodged a complaint that she saw the accused with his zip opened and was holding the victim’s hand.
The Bombay High Court again ruled a similar interpretation as in the before-mentioned case and decided that holding a minor girl's hands and opening the zip of pants will not come under the definition of "sexual assault". The Court observed that as per the definition of 'sexual assault', a 'physical contact with sexual intent without penetration' is important ingredient.
A few days must have passed when there was yet another judgment, where the same single bench comprising of Justice Pushpa Ganediwala gave another eyebrow raising judgment.
She acquitted a man from the charge of rape because of lack of evidence of struggle or a scuffle between him and the victim.
Though, we might like to add here that in this case the victim was not able to prove that she was below 18 years of age (which is a requirement under POCSO).
However just like the other two judgments it the precedentary value that we are more concerned with.
This controversial judgement arrived on 19th January which caused a huge ruckus otherwise there have been judgements of similar discrepancies in the past. 🤷♀️
For now the Supreme Court has stayed the Bombay High Court’s “skin-to-skin-touch-is-necessary-for-Sexual-Assault” judgement.
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LetsTalkLaw