The Nagpur bench of the Bombay High Court has recently ruled that the act of groping a minor without “skin to skin, direct physical contact” cannot be categorised as sexual assault as defined by law, and hence the accused cannot be penalised under Section 8 of the POCSO (Protection of Children from Sexual Offences) Act. The judgment has invited criticism from experts and activists, who lament that this may set a bad precedent for women and minors who face non-verbal molestation and harassment.
A single-judge bench of Justice Pushpa Ganediwala gave the order in a 2016 case where a 12-year-old girl was groped by a 39-year-old man, who was convicted by a special court under sections of the Indian Penal Code as well as Section 8, of the POCSO Act, which penalises sexual assault. The mother of the 12-year-old in her complaint had said that the accused took her daughter inside his home on the pretext of giving her a guava, pressed her breast and attempted to remove her salwar. The girl shouted out and the accused fled the room, after bolting it from outside. The girl’s mother, who had heard the shouts, ran into the house, and unbolted the room, which is when the minor narrated the ordeal to her mother.
An FIR was filed and the accused was arrested. He was later convicted by a court under Sections 354 (Assault or criminal force to woman with intent to outrage her modesty), 363 (Punishment for kidnapping) and 342 (Punishment for wrongful confinement) of the IPC and under Section 8 of the POCSO Act (Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.)
The accused had filed an appeal against the conviction under Section 8 of the POCSO case. Admitting the accused’s appeal, the bench said the question that the court is considering is whether the ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘sexual assault’ as defined under Section 7 and punishable under Section 8 of the POCSO Act.
The order passed by the Nagpur bench reads as follows:
"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’.
The court said that to qualify as sexual assault, the act must have been committed with sexual intent and the Act must involve touching the vagina, penis, anus, or breast of the child. The court noted the definition of sexual assault as: “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 court added, “As per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence,” adding that it cannot consider the minor’s counsel’s argument that it will be sexual assault, since “As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration.”
The court, however, said that the act would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code (Outraging a woman’s modesty), and ordered the accused’s arrest under the same.
It is important to note that while the minimum punishment for Section 354 is one-year imprisonment, the punishment under Section 8 of the POCSO Act is three to five years in jail.
The Bombay High Court’s judgment has been heavily criticised by experts and activists alike, who say this will set a bad precedent for minor victims who face molestation that is not “skin to skin,” or verbal sexual harassment.
Roop Sen, the co-founder of Sanjog, a non-profit organisation that works for survivors of abuse, violence and exploitation, says that this judgment raises many questions on how sexual abuse is defined in India.
“To define sexual assault as incidents where there must be skin contact between the accused and the victim raises the question of how non-contact abuse would be read by the courts henceforth. This gives impunity to all those offenders who are voyeuristic, who derive sexual abuse by 'watching' children naked or semi-naked, offenders who prostitute children online and watch them in various sexual acts without touching them, and myriad other situations,” says Roop.
He adds, “Child sexual abuse and exploitation is not about sexual gratification alone, it is about manipulation. And for a sex offender, to have a victim under control without having to lay a finger on the victim and being protected from prosecution potentially unleashes depravation of the twisted that is likely to victimise children hereon, with impunity.”
Vidya Reddy of Tulir, an organisation working on the prevention and healing of child sexual abuse in India, says that such judgments are often delivered when the minimum sentence itself is stringent.
“This is always a problem when the minimum sentence itself is stringent. The judges will tend to give benefit of doubt to the accused. Suffficent evidence has pointed out that increasing the quantum of punishment may, in fact, result in more acquittals. This judgment says, ‘Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required’."
“Now, if an accused can wear gloves and say there was no skin to skin contact, will that mean there was no sexual assault?” she asks, adding that as per the POCSO Act, if not Section 8 (sexual assault), this case may attract Section 18, which prescribes punishment for attempt to commit an offence under POCSO Act. Section 18 says, “Whoever attempts to commit any offence punishable under this Act or to cause such an offence to be committed, and in such attempt, does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with fine or with both.”