Groping a child through clothes not sexual assault?
By a Biometrica staffer
January 27, 2021
Groping a child through clothing does not constitute sexual assault, the Nagpur bench of the Bombay High Court ruled last week, drawing outrage across the country. On Wednesday, India’s top court suspended that ruling and permitted the attorney-general to file an appeal against the ruling, Reuters reported.
On Jan. 19 the lower court delivered a ruling that acquitted a man who had groped a 12-year old girl over her clothes, saying since there was no “skin to skin” physical contact, it could not be defined as sexual assault.
The Supreme Court, India’s top court, stayed the order and issued a notice to the Maharashtra state government to file an appeal against the verdict.
The Bombay High Court had reversed the decision of a sessions court that had convicted 39-year-old Bandu Ragde and sentenced him to three years in jail under Section 8 of Protection of Children from Sexual Offences Act (POCSO). Ragde was accused of luring a 12-year old girl to his house on the pretext of giving her a guava. He had allegedly groped her and attempted to remove her lower clothing.
Since Ragde didn’t remove her clothes, the offence falls under outraging a woman’s modesty under Indian Penal Code (IPC) section 354, the Bombay High Court said. Ragde was ultimately sentenced to one year in prison.
“Considering the stringent nature of punishment provided for the offense, in the opinion of this court, stricter proof and serious allegations are required,” wrote Ganediwala. “It is the basic principle of criminal jurisprudence that the punishment for an offense shall be proportionate to the seriousness of the crime,” she said.
The order drew widespread condemnation throughout India. Kavita Krishnan, secretary of All India Progressive Women’s Association, called it an “outrageous judgement” that goes against the letter of the law.” The POCSO law defines sexual assault very clearly and it has a provision for sexual touch. This notion that you will circumvent the law by saying touch with or without clothes makes no sense at all,” Krishnan said. The uproar prompted the central government to take the matter up to the Supreme Court
Many criminal laws dealing with sexual violence in India have been reformed since the brutal gang rape and murder of a young woman inside a moving bus in New Delhi in the winter of 2012. In 2013, the reforms prescribed mandatory minimum sentences for criminal use of force and outraging the modesty of a woman. However, the scope of punishment has often varied with the interpretation of the law. A high rate of violence and sexual assault against women contributes to India’s abysmally low current Gender Inequality Index rank of 125. The actual figures in India could be higher since many crimes go unreported.