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Allahabad HC saying forced oral sex ‘less serious’ shows obsession with brutality in sexual offences

Campus Voice is an initiative by ThePrint where young Indians get an opportunity to express their opinions on a prevalent issue.

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Growing up within the confines of ‘values’ dictated by patriarchal systems has pushed us into gender binaries. Since our childhood, we have been told to be strong and fearless and that “boys don’t cry”. And between every trauma, tangible or intangible, adults have implied that we should just “get over it”.

Sexual violence and abuse in some or other form is an everyday reality for many. In most cases, it takes a lot of time for a child to assert that there has been a continuous violation of their space and they have been coerced into doing things that one would not dare to and that too from a person whom they have seen their parents respect.

Thus, such assaults led to high levels of recurring distress, and over time the trauma of being assaulted leaves one feeling scared, angry, guilty, anxious, confused and with post-traumatic stress disorder.  Every child, irrespective of boy or girl, who faced sexual abuse – NCRB data recorded around 418,385 crimes against children in 2018-20, roughly one-third of which fell under Protection of Children against Sexual Offences (POCSO) Act, 2012 – went through a similar agony.

Now Allahabad High Court has interpreted forcible oral sex with minors as the “lesser” of the offences involving penetrative assault. This was in a case that involved a man forcing a minor (boy) to having ‘oral sex’ for Rs 20.

The Hon’ble Court saying “putting a penis into the [minor’s] mouth does not fall in the category of aggravated sexual assault or sexual assault,” creates a bad precedent just a few after the Supreme Court put aside another contentious judgment on “skin-to-skin contact” with minors.


Also read: ‘Grave error, unacceptable’ — why SC set aside Bombay HC’s ‘skin-to-skin’ contact POCSO verdict


Why does a victim need to succumb to tell the tale of reform?   

Sometimes only a brutal consequence of a crime jitters up our judicial and public conscience.

The 2012 Delhi gangrape case was one of those. But even before this case, the annals of change has been synonymous with something vicious, tangible and startling, implying that other offences were “lesser” or just not worth it.

This was the scenario during the trial of the Tukaram and Anr v. St of Maharashtra (Mathura custodial rape case). The Supreme Court, while reversing the Nagpur Bench judgment that convicted the accused, stated how Mathura, the tribal woman’ did not raise any alarm and ‘meekly followed’ the policemen, so her consent could be understood as ‘passive submission.’ Further, the apex court questioned the Bombay HC’s decision to cite Rao Harnarian v. State (1958) – the landmark case that distinguished between passive submission and consent. The victim succumbing to a fatal silence became her undoing, which the SC then saw as her passive submission – this was later connoted as a golden standard of what is not ‘consent.’

Thus, this judicial interpretation of a “good victim” underlines outcomes of cases even today, like the Allahabad HC judgment.


Also read: Tale of 2 charge sheets in POCSO case: Why court pulled up Delhi Police for ‘treachery, fraud’


Mental health and aggravated assault

Even though Sec 5 (j) (1) of the POCSO covers the aspect of mental health of a minor, it only speaks of how an assault can make a child mentally ill in such a way that it leads to impairment and the child fails to perform regular tasks, temporarily or permanently.

This reflects an obsession with brutal consequences of sexual offences to provide the reasoning behind doing something correctly.

It is imperative to understand we can’t teach children (especially boys) to care for others’ bodies unless they can care for theirs. Thus, in a society where one in six men are likely to be abused, it is essential to set a proper precedent.

Lastly, it’s tough to ascertain the reason behind the Allahabad HC judgment, maybe it was a lack of tangible brutality. But nowhere should it be a reason not to protect so-called ‘good victims.’ Even if cases do not represent tangible brutality, it cannot contrast to the emotional and psychological decimation of the victims at present and beyond.

Arunava Banerjee is a student at Amity University, Kolkata. Views are personal.

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