TW: Child Sexual Abuse
To Justice Pushpa Ganediwala,
Bombay High Court
We, the leaders of Utthan and SAANS are collectively writing to you to express our shock as well as grief over the judgment given on January 19, 2021, regarding the sexual assault of a 12-year-old girl. The news of this judgment infuriated us for legitimate reasons because the verdict given by you stated that there should be “skin to skin contact with sexual intent” for considering the act to be a case of sexual assault. As per your judgment “mere groping” does not come under the definition of sexual assault.
The Bombay High Court’s ruling on sexual assault is triggering, problematic, and infuriating.
We, as leaders as well as survivors of violence, are fighting to create gender sensitization in society for years. It is utterly disgusting to see that the coarse explanation in your judgment regarding sexual assault is nothing different from the gender discriminatory mindset of the people in our neighborhoods whom we aim to sensitize. How can you wrong us and our years of struggle? How can you wrong thousands of marginalized women like us who are fighting against the injustice of patriarchy? It seems you have internalized patriarchy within yourself just like the people residing in our localities.
To our dismay, we feel that such a judgment is horrendous and involves lots of discrepancies. Moreover, we are deeply saddened as well as pained to see that the verdict came from a woman with vast education and elite designation. It is expected from a woman like you who has qualified as a judge to comprehend the concept of gender sensitization. But we unanimously feel that this judgment will favor the perpetrators making women more vulnerable to sexual assaults which go under the radar.
The impact of such a judgment is harmful to the entire women community of the country. How can you be not aware of this being a woman first and then a judge? This verdict literally triggers our thoughts. We even realized that the empathic behavior of a woman was missing in this case while declaring fair judgment of justice to a minor girl. Undoubtedly, the verdict enraged us and made us extremely disappointed.
As survivors of violence once we know how many repercussions we faced while seeking justice against the wrongful acts that happened to us. Most of the time our experiences were ignored and the duty bearers/administrative personalities refused to believe us. This is the general attitude of the society that we encounter. We are really concerned thinking about the consequences of the judgment because it can easily affect our plight for justice.
We are worried thinking that if the judiciary fails to listen to us, who else will do justice to our demands. Even today we face threats from the traffickers and other offenders in our communities for working against trafficking. If your suggested judgment gets passed then even the police will not respond to the complaints of threats, blackmails, and other sexual harassments.
Hence this time the police will not be answerable or bound to listen to any complaint which doesn’t fit your definition of sexual conduct (because this judgment will not criminalize any other sexual offense not involving direct physical contact). All the survivors might lose their right to register similar complaints at the local police stations if such verdicts get passed.
Also, women from marginalized sections are exploited in multiple manners. They are more vulnerable to face sexual harassment as well as violence because of their social background. Being underprivileged with a lack of social as well as economic support they already face lots of hurdles to come up with their cases of injustice. But now if the judiciary refuses to act against
their cases of sexual harassment what will the women from marginalized backgrounds do. This judgment will also normalize sexual assaults in society in general.
In this case, the minor survivor was rescued by her mother from inside the locked room where she was found crying. She shouted for help and her mother came on time to rescue her or else she could have been raped. In this regard, we find that your verdict failed to include the implications of POSCO and also other IPC sections like wrongful confinement, kidnapping, etc. It focused only on “mere groping” without the removal of clothes. Your verdict mentioned that there should be “skin to skin contact with sexual intent” for an act to be considered sexual assault and also there should be more evidence as well as serious allegations for defining this act under POSCO.
But section 7 of the POSCO act states that whoever touches the private parts of a child or makes him/her touch their private parts with sexual intent then it is sexual assault. Again section 8 of the same act states that the person committing any sexual assault will be imprisoned for at least 3 years which can also extend to 5 years. In this case, the accused person gripped her breasts and attempted to remove her dress that clearly justifies sexual intent as described in the POSCO act.
Despite the definitions categorized under POSCO how can it not be considered as an incident of sexual assault? Your verdict only decided to punish the perpetrator under IPS section 354 with one-year imprisonment for outraging her modesty. We would like to raise our question on why POSCO was not followed in this case along with other applicant IPC sections. Just because the person didn’t remove her clothes doesn’t mean he didn’t indulge in sexual assault. Whether clothes were removed or not the way the incident happened clearly indicates a case of sexual assault.
Despite repeated offenses and severe violation of the body if the incidents of sexual assaults go unnoticed it will surely promote rape culture in the country. The situation will be successful in undermining the voices of the survivors constructively. Besides, anyone can easily say if there is no “skin to skin” contact then it is not a sexual assault. The verdict seems to give a clear license to the perpetrators to violate the dignity of women and abuse them sexually.
This will prevent many survivors from raising their voices against sexual exploitation done to them especially minors and young girls. Therefore, it is necessary to have strict laws and immediate action against the perpetrators. If the perpetrators are punished and dealt with with stringent actions then it will at least act as an example of justice and other survivors can come forward with their complaints without hesitation. But if the duty bearers and the ones responsible for providing social justice favor the perpetrators and offenders then it is highly alarming for us and other survivors fighting against injustice.
We aim to inform you about our disappointment and vexation regarding the verdict via this open letter. We always have bigger expectations from women placed at higher authorities or bearing important portfolios to understand the situation of all the women, in general, facing discrimination and other major problems. But this particular case made us realize that only education cannot create a gender-just mindset and this mentality impacts the overall society.
Being a judge you should understand your influence in society and how much you need to behave empathetically towards justice seekers. This particular verdict of yours will only encourage the eve-teasers, molesters, and other abusive men who objectify women. We would strongly request you to punish the accused person in this case under proper IPC sections and set an example of a gender sensitized verdict. You should also ensure that the girl lives with dignity and the guilty gets stringent punishment for his misdeeds.
We extend our full solidarity to the girl, her mother, and everyone fighting for her justice.
SAANS and Utthan
If you are a survivor, parent or guardian who wants to seek help for child sexual abuse, or know someone who might, you can dial 1098 for CHILDLINE (a 24-hour national helpline) or email them at firstname.lastname@example.org. You can also call NGO Arpan on their helpline 091-98190-86444, for counselling support.