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‘Skin-To-Skin Contact Not Necessary To Prove Sexual Assault’ Under POSCO, SC Sets Aside Bombay HC’s Bizarre And Controversial Judgement

By Neha Bhupathiraju 

Case: Attorney General for India v. Satish and Anr

Bench: Bela M. Trivedi. J, Uday Umesh Lalit. J, S Ravindra Bhat. J

The Apex Court set aside a Bombay HC judgement which held in January this year that skin-to-skin contact is necessary to claim sexual assault under the Protection of Children from Sexual Offences 2012 (POSCO). The SC’s latest judgement is trivial to the rights of minors, whose cases of sexual assault are already severely under-reoprted. 

The Single Judge Bench at the Bombay HC had to decide whether attempting to remove the salwar and touching the breast of a 12yr old comes within the meaning of sexual assault under Sections 7 and 8 of the POSCO Act. The accused took the minor girl into his house on the pretext of giving her guava, and attempted to remove her clothes and touched her breast. The minor’s mother found her daughter locked inside the accused’s house, and she soon filed an FIR. A witness also heard the minor yell for her mother. 

The Bombay HC earlier noted that “...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’….as such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration.” This verdict was heavily criticized, and rightly so, for it tries to instill sexual assault to a box – that you can only be assaulted in one manner, and not in any other. 

Senior Advocate Karuna Nundy said that “the judge said that because the sentence was too high, she felt that the crime should be interpreted in such a way that somehow the accused would then get a lower sentence…(in doing so) the judge did violence to the statute and basically made a whole slew of crimes under POCSO legal”. While expressing disappointment, Senior Advocate Rebecca John saidWhen you use logic that is questionable and when you use language that is highly avoidable, then it has a ripple effect, because it actually gives a message of sorts to society and the subordinate courts, that this is the way you should appreciate evidence……that, to me, is very problematic.” Attorney General Venugopal noted that the judgement set a dangerous precedent, creating a “devastating effect on pending cases before subordinate courts.

Saying that skin-to-skin contact is necessary to prove sexual assault completely invalidates the minor’s experience. The provision says “whoever touches”, and pressing the breast passes that test. To interpret physical contact as skin-to-skin contact is outside the intent of the law. It also has a devastating impact on minor boys, as the accused can now roam scot free. While the Bombay court held that it amounts to outraging the modesty of a woman, the apprehension that comes from a grown man trying to undress you and touch you with ghastly sexual intent comes nowhere close to that.  This analogy is from the same family as somebody trying to define how a sexual assault or rape victim can behave, that there is an ideal behaviour that such victims must adhere to, and if you don’t meet them, then you weren’t probably violated (enough).

Chairperson of the National Commission for Protection of Child Rights, Priyank Kanoongo, had written to the Maharashtra government to appeal the judgement. Soon the SC stayed the Bombay court’s verdict, after hearing separate pleas filed by Attorney General, National Commission for Women and Maharashtra Government. 

The SC criticized the Bombay verdict and held that restricting the definitions of such terms would lead to absurd results, also defying the legislative intent of protecting children from sexual offences. It held “...if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non-sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act. The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.” The Court convicted the accused to three years rigorous imprisonment with a fine of INR 500. 

Sexual offences amongst children are generally underreported. In majority of the cases, the children’s offenders are known to them: they’re either family, a neighbor or acquaintance. Many might not be able to differentiate between good or bad touch, and even if they do report it to someone, there is a high chance their story is brushed under the rug – only for the child to recover from it years later. The National Crime Record Bureau found that at least 109  children were assaulted everyday when it recorded 1,41, 674 cases in 2018. An alarming study found that every second child is exposed to such abuse, and one amongst five face critical forms of it. The SC’s verdict is a step in the right direction under such dire circumstances. 

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