The Bombay High Court has ruled in a case pertaining to an attack on a 12-year old girl by a 39-year old man that he was not guilty of sexual assault because no skin-to-skin contact took place. He had groped her breasts, without removing her clothing. He was only deemed guilty of “outraging a woman’s modesty”.
On www.livelaw.in, which breaks down notable cases so that laypeople can understand them, lawyer Ashok Kini notes that “Neither the POCSO [Protection of Children From Sexual Offences] Act or any other laws in India define what is ‘touching’ or ‘physical contact’”. On the same website, lawyers Radhika Roy and Harshita Singhal broach the precedent case Ravi vs State, wherein holding the hand of a child (with sexual intent) was ruled as sexual assault, writing that this judgment has “shrunk the scope of sexual assault”. This has frightening repercussions for future cases, involving either minors or adults.
The phrase “sexual intent” bothered me, and I was (as a layperson) unable to find a legal definition, at least in India. But, according to the United Nations’ General Recommendation 19 to the Convention on the Elimination of all Forms of Discrimination Against Women, sexual harassment is the “unwelcome sexually determined behavior as physical contact and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or actions.”
The word “unwelcome” suggests the interpretation of what constitutes invasive behaviour should firstly be from the perspective of the person who is subjected to it. Ascertaining the accused’s “intent” is problematic. The accused is not always going to express that they had such intent, especially if they’re aware of the legal ramifications of such an admission.
It should be easy to imagine a variety of scenarios in which, following a sexually transgressive experience, the perpetrator responds: “I only pulled your neckline up because I didn’t want our colleagues to leer at you”; “I only hold your waist so that our classmates think you’re ‘taken’ and don’t bother you”; “It wouldn’t have happened if I wasn’t so drunk”; and the like. Sexual intent? No, no!
It should be easy to imagine these because they are intrinsically a part of the lived experience of many in this country. So is being groped, over the clothes, especially in public. I can’t speak for anyone else, but there is no way that I will ever feel that the archaic legal term “outraging a woman’s modesty” suitably defines my experiences.
If you’ve read this far, you won’t need a trigger warning. When I heard of this shocking judgement, my mind flew back to a night twelve years ago. I’d been on a sidewalk and had an intuition that the motorcycle coming from the opposite direction was trouble. I shifted my handbag to the shoulder away from the street. A mistake: it wasn’t my handbag he was after, but my breast, which he reached out and painfully smacked as he rode past. If he received pleasure from that touch, it was not from my body as much as from having and exerting the power to hurt me. Does that count as “sexual intent”? Why wouldn’t that count as assault?
An edited version appeared in The New Indian Express on January 28th 2021. “The Venus Flytrap” appears in Chennai’s City Express supplement.