A court in India has ruled that groping a child/woman in a way that their clothing is not removed does not constitute sexual assault, attracting outrage across the country and frustrating rights campaigners struggling to counter widespread sexual abuse against women and children.
The judgment came on last week from a Bombay High Court judge, Pushpa Ganediwala. She acquitted a 39-year-old man from sexual assault charges against a 12-year-old girl as he had not removed her clothes, meaning there was no skin-on-skin contact.
The case dates back to December 2016 when the accused was brought the child to his house on the pretext of giving her guava. There, he touched her chest and tried to remove her underwear. He was sent three years in prison after being found guilty of sexual assault in a lower court. The man challenged the decision in the High Court.
In her January 19 judgment, Justice Ganediwala found that his action does not fall in the definition of ‘sexual assault’ – an offense that carries a minimum three-year prison term expendable to five years in certain cases.
“Considering the stringent nature of punishment provided for the offense, in the opinion of this court, stricter proof and serious allegations are required,” she ruled.
Surprisingly, her decision contradicts India’s Protection of Children From Sexual Offenses Act 2012, which does not explicitly mention that skin-on-skin contact is needed to constitute the crime of sexual assault.
The judge found him not guilty of sexual assault but convicted him on the lesser charge of molestation and sentenced him to one year in prison.
“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.
Outrage in India
The core problem with this judgment is that it has set a precedent (a bad one) for other high courts and lower courts around the country.
However, India’s attorney general raised the case with the country’s top court, arguing that the ruling set a ‘dangerous precedent.’
Following the development, the Supreme Court ordered a stay of acquittal and asked the attorney general to file a proper petition challenging the Bombay High Court judgment in two weeks.
Earlier in the week, the National Commission for Women had rejected the decision saying that it would have a “cascading effect on various provisions involving safety and security of women.”
Karuna Nundy, a lawyer at the Supreme Court of India, called out judges who passed judgments that were “completely contrary to established law” and basic rights to be retrained.
“Judgments like this contribute to impunity in crimes against girls,” she tweeted.
Ranjana Kumari, the director of the non-profit Centre for Social Research, which advocates for women’s rights in India, said the judgment is “shameful, outrageous, shocking and devoid of judicial prudence.”
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