‘Bad Precedent for Child Rights’: Experts on Bombay HC Judgment

“The judgment is quite shocking and sets a bad precedent for child rights,” says Dr Amit Sen, a child psychiatrist.

Protest against child abuse. Image used for representational purposes.

(Photo Courtesy: Facebook/AWARE)

(Trigger warning: This article discusses child sexual abuse. If you know someone or are the victim of abuse call the child helpline number ‘1098’.)

“When I heard it, I was outraged,” Chhavi Dawar, CSA survivor and activist.

“The judgment is quite shocking and indeed, it sets a bad precedent for child rights,” says Dr Amit Sen, a child psychiatrist.

“This one single judgment has set us back by years,” adds Anuja Gupta, founder of Rahi Foundation.

Every 15 minutes, a child is sexually abused in India, says government data.

The Supreme Court on Wednesday may have stayed the acquittal order of the accused in the case, but the judgment by Nagpur Bench of the Bombay High Court in which it held that groping a child without ‘skin-to-skin contact’ would not amount to ‘sexual assault’ under the Protection of Children from Sexual Offences (POCSO) Act was certainly bizarre.

As per LiveLaw, it would have instead merely amounted to molestation under the Indian Penal Code (IPC) which carries a lighter sentence.

In a world where sexual abuse is rampant, and understandings of ‘abuse’ and ‘consent’ are murky at best, can judgment like this redefine what abuse is for children?

We speak to activist and child sexual abuse survivor Chhavi Dawar, child psychiatrist and co-founder of Children First, Amit Sen and Anuja Gupta, founder of Rahi Foundation, a centre for the prevention and healing of incest/child sexual abuse to find out.

‘Abuse is Abuse’ Say Experts

“What would you want to be told if you were abused as a child?”

Anuja Gupta, founder and director of Rahi Foundation

Gupta told me to imagine myself as the 12-year-old, the minor girl, who sat in court, braving all odds to come out publicly and hope for justice and be met with what amounts to dismissal.

What does this mean in the experience of a child experiencing violations or transgressions? You just cannot say children don’t feel violated if they are fondled over their clothes,” adds Dr Sen.

Who decides abuse? A judgment like this moves away from protecting the child, the main tenant of the POCSO Act, and looks at the interests of the alleged abuser.

Does this redefine abuse then? Is fondling alright but only ‘skin-to-skin’ problematic? A resounding NO.

Gupta, one of the members who helped create POCSO says that the law is very clear. “We had a chance to work on the law when we worked on the ground level and saw the reality of child abuse and incest.”

“We know that sexual violations can be of very kinds. It doesn’t always require touch, and this range is mentioned in POCSO because we know the damage it causes to the victim and survivor.”

Anuja Gupta, founder and director of Rahi Foundation

“It is very clear what constitutes sexual abuse and you don’t need contact. If someone exposes a child to pornography, of their genitals - these are forms of sexual abuse.”

How Will Children Be Affected by the Judgment?

A scary ripple down effect of this judgment is that child victims or adult survivors of abuse may feel unheard.

“I was outraged and felt it invalidated my experience.”

Chhavi Dawar, CSA survivor and child rights activist

Groping is often the first step to other abuse. There is often a cycle of abuse and as activists, we encourage speaking up, we start sessions by saying there are two kinds of abuses: touch and non-touch,” she adds.

“What are you telling the child? That touching like this is ok? It took me years to learn that what was happening to me was wrong.”

Chhavi Dawar, CSA survivor and child rights activist

Dawar says her abuse started as early as 5 years old, but it was only in class 10, aged 16 when she said in a class about HIV and sex that she realised the wrong that had been done to her. She went on a downward spiral for a few years after that but overcome some of it to become a champion for child rights. Watch her story here. “This has a psychological impact years after the incident as well.”

She adds, “This will harm the child in so many ways - the amount of courage and overcoming her own guilt to come into the justice system and then having this done to her is just not okay. Not okay for the child or any survivor or any child who is currently at risk or who is being abused.”

Dawar says that this judgment is terrible as it sets a regressive legal standard and that might be misused.

“This is a bizarre interpretation of what POCSO says - which the judge has done to keep the punishment proportionate. This is saying that the perpetrators will be protected and gives a very wrong idea to current and future perpetrators. We are talking about children and it our responsibility to keep children safe.”

Chhavi Dawar, CSA survivor and child rights activist

She says it was disheartening to hear this as it invalidates the child and survivors, and people who work in this field too.

“But I am happy there was hungama over Twitter and the National Commission for Protection of Child Rights has issued a letter to Bombay HC, and even National Commission of Women has challenged it.”

She hopes that going forward there can be POCSO training for “people in the judicial system and police forces. I also want to train adults in the proper understanding of the Act to better safeguard children.”

An important assertion to make in light of this judgment is this: if a child feels uncomfortable or wronged, listen to them and believe them. Child rights are as much about asserting their worth as it is about protecting children.

“As therapists, we have to take a very clear stand in terms of social justice and say that yes this is abuse, it is wrong, we stand by you.”

Dr Amit Sen

Will this confuse children who are being taught about safe and unsafe touch and then being given differing information from the courts?

Gupta says that luckily, one judgment will not have the power to change the way parents give information to their children but that is because not enough adults are doing this in the right way in the first place. “It’s an important judgment though as it is being covered widely but thankfully also critically.”

“More than just confusing, this sort of thing takes away the atmosphere of safety we are trying to create for children and gives permission to predators. Young men who are confused about boundaries may think over the clothes fondling is alright and doesn’t constitute a violation or transgression when it absolutely does.”

Dr Amit Sen, child psychiatrist and co-founder of Children First

Children need a safe space where they are heard and protected. “A child often doesn't talk as a way of protecting themself, they feel they will be blamed and re-traumatised,” says Gupta.

“On the ground level, we are not confused,” asserts Gupta. “The understanding of incest and the type of messaging we give to survivors or adults to protect children will not be affected by this judgment.”

A child sexual abuse survivor speaks about her experience.(Illustration: Arnica Kala/The Quint)

'Double Whammy of Trauma’: CSA and Mental Trauma

What are the emotional and psychological consequences for the child? “A double whammy of trauma,” adds Gupta, “where the child is abused and then dismissed. Anyway, child sexual assault is uniquely traumatic. There is silence, trauma and shame which is ironic as they should not be feeling any shame.”

She adds that this young girl from the case had the courage to scream and tell her mother the truth. “She overcame obstacles to disclose the truth - now imagine if her mother did not believe her? Her self-esteem is completely shattered and she has to cope with it alone and often, carry it to her adulthood shamefully. Now, this girl has reported the crime too which is again difficult and she was met with such a judgment.”

Children are empowered by the law against an umbrella of abuses. “Every abuse has an impact. Yes, the impact and degree may differ if you were groped or if you were raped by your father daily, but all are types of sexual assault and all are bad.”

“Can we assume that in any relationship, especially that of power such as family members, teachers, do they have the freedom to touch a child over their clothes,” asks Dr Sen.

Dr Sen explains how often people are unaware of the boundaries and transgressions, and when you have a young man who has transgressed and are told they did, they are taken aback by what they have done and what consequences it can have.

Increased reports about child abuse, rise in child pornography and exploitation - need to protect our child during COVID-19 lockdown.

What Impact Does This Have on the Community?

“Think about the message this is sending to the community at large as well - it is undoing years of work done. It is saying you can play with the boundary, and it normalises abuse. It also silences whatever courage we are trying to give children.”

Dr Amit Sen, child psychiatrist and co-founder of Children First

Sexual assault is so silenced in so many ways in our society, that a judgment like this threatens to cut at the little progress we have made with a lot of effort from civil society organisations. Objectification is shrouded in terms like ‘eve-teasing’ that downplay the trauma of being abused.

Gupta adds, “This issue is anyway silent and difficult to disclose let alone report, and now this judgment will take us to another time before the law was created. This retrograde thinking has taken us back 40-50 years even.”

“There’s a lot of guilt and self-regulation women do anyway before doing anything. For example, in a place like Delhi, women think a lot before stepping out of their homes even - there is an element of anxiety and fear lurking because of the way they are objectified. Not that this doesn't happen at home, but it has larger consequences of public safety too,” says Dr Sen.

The only silver lining is that the law is very clear and it empowers children, adds Gupta.

(This story was first published on FIT and has been republished here with permission.)