It wasn’t skin to skin so it didn’t count as assault

In a ruling that is starting to make international headlines, Justice Pushpa Ganediwala presiding in the highest court in the Indian state of Maharashtra ruled that the actions taken by the 39-year-old man did not constitute sexual assault and so did not warrant a stricter sentence as had been assigned by a lower court and reduced the man's sentence and levied a fine of Rs. 500 ($6.86) on January 24.

October 5, 2020 Ragde Gadchiroli had been sentenced to five years in prison.

She did agree though, that Gadchiroli had "outraged the modesty" of the 12-year-old girl under Section 354 of the Indian Penal Code.  His sentence was reduced to one year under this statute.

"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 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'," Ganediwala determined.

He came to this ruling by interpreting the "physical contact" aspect within the definition of sexual assault as defined in the Protection of Children from Sexual Offenses (POCSO) Act to mean "direct physical contact- direct physical contact i.e. skin-to-skin contact with sexual intent without penetration."

According to the ruling obtained by Live Law, the girl was lured to a residence under the pretext of being given a guava by the man.  When the girl did not return home in a timely fashion, her mother began to search for her, encountering the man who denied knowledge of the girl's whereabouts.  Her mother continued to search, coming to a room that was bolted from the outside.

The girl testified that "when she was going to bring guava, the appellant caught her hand and told her that he will provide guava to her and he took her to his house. He tried to remove her Salwar and pressed her breast. Then she shouted. The appellant pressed her mouth by his hand. The appellant went down by closing the door of the room from outside. Thereafter, her mother opened the door and entered the room and brought her outside. Then they went to Police Station for lodging report."

"To think that the victim, who is a child, in this case, had to see her experience diminished and trivialized by the very court and law that is meant to ensure her protection, is disturbing on so many levels," Mani Chander, a lawyer and founding partner of Clinch Legal, as well as a member of the bar in the state of New York, wrote in the Times of India.

"The judgment delivered," Chander states, "not only goes against the mandate of the POCSO Act, which seeks to protect the best interests and well-being of children form all forms of sexual offenses, but is also against the basic tenets of criminal jurisprudence."

Chander sums the situation up well by stating simply that, "Anyone reading this will be hard-pressed to imagine this as anything less than sexual assault. 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."

“To define sexual assault as incidents where there must be skin contact between the accused and the victim raises the question of how non-contact abuse would be read by the courts henceforth. This gives impunity to all those offenders who are voyeuristic, who derive sexual abuse by 'watching' children naked or semi-naked, offenders who prostitute children online and watch them in various sexual acts without touching them, and myriad other situations,” Roop Seb, co-founder of Sanjog, a non-profit organization that works for survivors of abuse, violence, and exploitation told The News Minute.

“Child sexual abuse and exploitation is not about sexual gratification alone," Roop added, "it is about manipulation. And for a sex offender, to have a victim under control without having to lay a finger on the victim and being protected from prosecution potentially unleashes depravation of the twisted that is likely to victimize children hereon, with impunity.”

This ruling sets a dangerous prescience for young women in India which is seemingly rife with stories of the rape and even murder of young children. While left feeling victimized by such an assault, they are basically being told to 'wait until they succeed' before coming to the courts for justice despite the very intention of the POCSO Act being to protect women and girls by severely penalizing those that engage in assault.