We have a serious problem when people say, “But it wasn’t rape,” or “Sexualizing a child without touching is creepy but not sexual abuse.” Creepy is practically a synonym for sexualizing.
Sex crimes should be seen from the point of view of harm to the victim/survivor, not in terms of the mechanics and body parts. There is what I call a “penetration fallacy” where the halachic and legal criteria of severity ignore the psycho-emotional harm.
Professionals report profound harm including suicides and overdose deaths because of sex abuse that did not involve penetration of any sort. As long as the sexual dimension is apparent enough to make it creepy, it becomes possible for it to seriously harm a child. Not every child. Resilience varies. Some can come out pretty well from horrific things while others are deeply harmed by lesser things.
Even the law recognizes the victim’s perspective by considering victim impact reports and statements in setting sentences. The law bases the amount of civil judgements on the basis of the effects such as subsequent functional impairment, not just the acts. This is correct because some children are more harmed by fondling than others are by penetration.
Jewish law has explicit categories for harm: nezek, tzar, ripui, sheves and boishes. Sex abuse, depending on the particulars can include all five: physical harm, pain, medical healing costs, incapacitation, and shame.
Even those who don’t know technical halacha ought be sensitive to the ethical concern woven through rabbinic teaching about the grave sin of shaming others or even speaking hurtful words. It ought to be so much more obvious that violations of intimacy and tznius in ways that shame are especially grave sins and deeply harmful.
Yeshivish guys, stop asking, “Is she still a besulah (virgin).” It is almost never of any halachic consequence for their future marital status. It is true that a cohen gadol (high priest) can only marry a besulah. But even the most highfalutin schadchanim (matchmakers) are not offering any of them up.
There is a problem of discrimination against survivors of abuse who are open about their victimization. But the cure is not halachic, it is waging war on abusers instead of stigmatizing victims.
The rabbinical community should educate the public to understand these many aspects of the harm of child sex abuse. Instead we still hear echoes of the claim that it was nisht geferlich (not terrible) because there was no penetration. It is time to replace the penetration fallacy with a victim-centered understanding of the harm. It is time for more rabbinic leadership to give attention to these grave tznius violations instead of obsessing about the gauge of stockings and the length of skirts. A longer skirt is of no consequence if it can be lifted and removed with impunity because there is no penetration.