Opinion: Sexual assault is sexual assault, skin or no skin

I’m trying hard to write this calmly. Truth is, I am infuriated as I write. Not least, because I have a young daughter.

Many years ago, I was a teenager in Delhi. My sister, two years younger than me – about 13 or 14 – had an informal “summer job” with a friend who ran a travel agency nearby. She would go there every day, arrange papers and address envelopes and such like. It was really just a chance for her to help out and feel like she was contributing.

But one day she came running home in tears, barely able to speak. A young man at the agency had pawed her. We didn’t ask if it was “inappropriate” nor did she have to tell us. The state she was in said it all. He had touched her as no girl should be touched and yet as pretty much every woman in this country has been touched at some point in her life.

Leave aside legal language for a moment. An assault, and a sexual assault in particular, is one of those things we recognise without needing it defined. The tears and fear on my sister’s face told the story well, that day in Delhi. She knew what had happened to her. She knew it was wrong. All at once, she was bewildered and betrayed and terrified.

I think of the 12 year-old girl whose case came before the Nagpur bench of the Bombay High Court on January 19, and my sister’s tear-streaked face from many years ago swims up before me. That’s why I know just how bewildered, betrayed and terrified this 12 year-old must have felt, that day in 2016 when Satish Ragde lured her into a room and then grabbed her breast.

Sexual assault? It’s right there, in the terror and betrayal she felt.

Sexual intent

Whether the court was aware of, or even empathised with, everything she felt that day, I don’t know. But in considering Ragde’s appeal against his conviction by a lower court, the language of the Protection of Children from Sexual Offences (POCSO) Act came up. Section 7 in the Act, which the judgement quotes, reads in full:

  “7. Sexual assault – Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration, is said to commit sexual assault.”  

The girl told the court that Ragde “tried to remove her salwar and pressed her breast”. The judgement leaves no doubt that he did this much. Any reading of Section 7 will conclude that his act was, therefore, a sexual assault. After all, Ragde touched the “breast of the child”. After all, this was certainly a “physical contact without penetration”. After all, this was certainly with sexual intent.

But then the judgement has this baffling interpretation: “The act of pressing of 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 top and pressed her breast, would not fall in the definition of ‘sexual assault’.”

There’s more bafflement lurking a little further on: “There is no direct physical contact i.e. skin to skin with sexual intent without penetration.”

This is what infuriates me. It’s one thing that the language in the POCSO Act makes no mention of “skin to skin” contact (the word “skin” does not appear anywhere in the Act). But I’d love an explanation – I imagine hundreds of millions of women would, actually -–of how, when a man grabs a woman’s breast as Ragde did this girl’s breast, it is actually not “direct physical contact”.

Let’s also ask a relevant question. Is there a woman in the world who would say of such an event, “He only touched my clothes. He didn’t touch my breast”? Is there a woman in the world who would be less than outraged and frightened by this? Is there a woman in the world who has not developed antennae to protect herself from this unwelcome attention? After all, here’s what a good friend told me after learning about this judgement: “I remember being harrassed as a kid. It’s no less traumatic if one’s clothes are on.”

Take a moment to think of all that’s in that word “traumatic”.

A terrifying prospect

It’s not just that this judgement’s interpretation of Section 7 is absurd. It’s also that it is an offence to every single person – girl, boy, man, transgender, woman – who has been pawed, felt up, touched, kissed, etc, either when they were children or without asking for it. It’s also that it is infuriating to all of us with children and loved ones, who wonder daily how we will protect them from all the predatory scum out there.

Because this judgement forever tells the scum that they can feel and paw, touch and grab, all they want, so long as there’s some cloth involved.

Because then it isn’t sexual assault.

Yes indeed, I have a young daughter. This misogynistic, sexist judgement has just made her world that much more terrifying. How will any of us sleep well at night?

Dilip D’Souza is a writer in Mumbai. He was the co-author, with Joy Ma, most recently of The Deoliwallahs: The True Story of the 1962 Chinese-Indian Internment.