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NO SKIN-TO-SKIN CONTACT MEANS NO SEXUAL ASSAULT?

Author: Ambrish, II year of LL.B. from Kurukshetra University


Abstract

Recently Supreme Court has overdone the decision of the High court of Maharashtra on SKIN-TO-SKIN CONTACT. To protect children below 18 years of age from any kind of sexual abuse, POCSO Act in 2012 was enacted. Before the enactment of this act, there was no other act to protect children, especially from any kind of sexual offense. India signed a convention that requires sexual exploitation and sexual abuse to be addressed as heinous crimes. And to provide strict punishments to create a deterrence effect against sexual offenses against children, POCSO Act was enacted. Before this, under the Indian Penal Code of 1860, child sexual abuse used to be accounted as an offense under Sections 375, 354, and 377. But the IPC Section 375 does not protect the male child and protects only traditional sexual offenses like peno-vaginal intercourse. To protect children from abuse, this Act was formulated to address sexual abuse and sexual exploitation of children and pornography, effectively.

KEYWORDSskin-to-skin contact, sexual assault, child abuse


Introduction

Recently Supreme Court has overdone the decision of the high court of Maharashtra and said NO SKIN-TO-SKIN CONTACT IS NECESSARY BUT SEXUAL INTENT IS NECESSARY. So, to understand this issue, we need to understand the POCSO Act.


To protect children below 18 years of age from any kind of sexual abuse, POCSO Act was enacted in 2012. Before the enactment of this act, there was no other act to protect children, especially from any kind of sexual offense. As India signed the UN convention on the rights of child in 1992, the convention requires sexual exploitation and sexual abuse to be addressed as heinous crimes. And to providestrict punishments to create a deterrence effect against sexual offenses against children, POCSO Act was enacted.


In India, according to the 2011 census, there are 472 million children and to protect them from this kind of heinous crime, POCSO Act was enacted. Before the introduction of the POCSO Act 2012, the sole legislation in India that aimed at protecting the rights of a child was the Goa’s Children’s Act 2003, Rules 2004, and The Commission for protection of child rights act (CPCR) 2005. Under the Indian Penal Code, of 1860, child sexual abuse accounted as an offense under Sections 375, 354, and 377.


But the IPC Section 375 does not protect the male child and protects only traditional sexual offenses like peno-vaginal intercourse. IPC Section 377 and IPC section 354 do not define the terms “unnatural offense” and “modesty”. But this term is ambiguous and open-ended interpretation can be done and due to this, judicial discretion gets maximized. Thus, the need for an explicit act was felt for the offense against children, and a special court was also made to hear the cases which are under POCSO Act.


To protect children from child abuse, the Act was formulated to address sexual abuse and sexual exploitation of children and pornography, effectively. In 2019, The Act has been amended for more deterrence. This amendment contains provisions for the enhancement of punishments for various offenses and provides security and dignified childhood for a child.


Salient Features of the Act

  • First, The act defines a child as gender-neutral.

  • Second, The Act also defines different forms of sexual abuse: including penetrative and non-penetrative assault, as well as sexual harassment, and pornography.

  • Third, The Act deems a sexual assault to be “aggravated”: if the abused child is mentally ill or the abuse is committed by a person in a position of trust or authority like a family member, police officer, teacher, or doctor.

This provision is one of the most important provisions under the POCSO Act.

  • Fourth, The law provides for relief and rehabilitation as soon as the complaint is made. The special juvenile police unit of the local police makes immediate arrangements for the care and protection of a child. The arrangements such as obtaining emergency medical treatment for the child and placing the child in a shelter home, etc.

  • Fifth, The act has provisions for mandatory reporting. This casts a legal duty upon a person who has knowledge that a child has been sexually abused, to report the offense. If he fails to do so, he may be punished with six months of imprisonment and/ or a fine.

  • Sixth, The Act provides for the establishment of special quotes for the trial of offenses under the act.

  • Lastly, The Act prescribes a maximum punishment for life imprisonment or the death penalty. The act provides a mandatory minimum punishment of three years.


Safeguards Available Children

  • The act has provisions for avoiding the re-victimization of the child at the hands of the judicial system.

  • The accused has to be away from the child at the time of the testifying.

  • The act mentions special quotes that have to be conducted during the trial without revealing the identity of the child. And also, in a child-friendly manner, as much as possible.

  • The child may have a parent or other trusted person present at the time of testifying. The child can also call for assistance from an interpreter, special educator, or other professional while giving evidence.

  • The cases must be disposed off within one year from the offense being reported.


Now the question arises that why the POCSO Act is more comprehensive than the IPC?

  • Firstly, In the IPC, the definition of assault is generic i.e., ‘assault or criminal force a woman with intent to outrage her modesty’. However, in POCSO, the act of sexual assault is explicitly mentioned.

  • Second, IPC provides punishment for the offense against a victim, irrespective of age. However, POCSO is especially for the protection of children.

  • Third, POCSO provides higher punishment as compared to IPC, as the victims are children.


what are the challenges associated with POCSO Act?

  • First, The POCSO Act suffered from an abysmal rate of convictions like 14% in 2014 and 18% in 2017. The National Crime Records Bureau (NCRB) data of 2016 mentions the conviction rate as 29.6% while pendency is as high as 89%. The NCRB also mentions that the cases are not disposed off within a year due to reasons such as frequent adjournments, the inability of the police to file the investigation report, etc.

  • Second, The Act mentions special children’s courts to be established to hear the cases. Many states did not establish such courts. This is highlighted by the re-exploitation of children in orphanages in the state of Tamil Nadu v. Union of India and Ors case.

  • Third, The Act provides a maximum punishment of the death penalty. But justice J.S. Verma’s committee (constitutedafterneath Nirbhaya case) and 262nd report of the Law Commission of India 2015 was against the imposition of the death penalty for rape cases.

  • Fourth, Section 8 of the POCSO Act prescribes a mandatory minimum sentence of three years inthe state of J&K v/s in Vinay nada case, the court held that it cannot prescribe punishment less than the minimum prescribed punishment. This resulted in various challenges such as:

  • More acquittals in POCSO cases: The percentage of acquittalsis high because the judges think that the mandatory minimum punishment prescribed is more, compared to the seriousness of the crime.

  • Else, the court can acquit the accused and punish him like in theSatheenshcase in the state of Maharashtra.

  • In other words, punishing the person under section 354 of IPC is outraging the modesty of women.


The findings of the courts in the cases of sexual assault

1. The Supreme Court in vishaka v/s state of Rajasthan (1997), a very famous case under sexual harassment at the workplace and this case is also famous for judicial activism as the offensesrelated to the modesty of women cannot be treated as tribal.

2. High Court of Chhattisgarh in Pappu v/s state of Chhattisgarh (2015) held the conviction of the accused of sexual harassment under section 354A which requires ‘physical contact’ and advances necessary element. It didn’t go into the debate of skin-to-skin contact.


So, Now let’s discuss why has the Supreme Court overdone the decision of the Maharashtra High Court.


There was a case in which this discussion started.

Satish Ragde V/s State of Maharashtra 2021

Facts of this case

Satish Ragde is a 39-year-old man who called the 12-year-old girl to his house on the pretext of giving her guava and he attempted a sexual assault on that girl by undressing her and by pressing her breast but he pressed her breast over her clothes. After knowing about this incident, the girl's parents filed a report against Satish Ragde and the Special Court convicted him under Section 8 of the POCSO Act 2012. Special Court gave him 3 years of imprisonment.


The appeal was preferred by the appellant against this order in the Bombay High Court.


Issue

Was the accused liable for the punishment provided under POCSO Act?

Maharashtra court (Nagpur Bench) came into existence and reversed the decision of the Special Court and reduced the sentence of Satish Ragde and charged him under section 354 IPC (outrage the modesty of a woman)


Judgement Passed on 19th January 2021. So, the Nagpur Bench of the Maharashtra High Court was handled by Justice Pushpa Ganediwala. She mentioned in this case that Skin-to-Skin Contact is necessary with Sexual Intention. Withoutpenetration, this will come under Sexual Assault. And in this case, no Skin-to-Skin contact happened, so this will not lie under POCSO Act.


Justice Ganediwala also said, “MERE GROPING” means touching over clothes does not fall under the category of SEXUAL ASSAULT. She also mentioned that mere act of pressing the breast of a 12-year-old without removing her top will not come under section 7 of the POCSO Act.


And that’s why Satish Ragde was acquitted of3 years of jail under POCSO Act, but was convicted under Section 354 of IPC and got 1 year of a jail sentence. After this judgment, Maharashtra High Court got criticism for its decision.


Reasons For Judgment given by Maharashtra High Court

High Court said that the offense under POCSO carried a higher punishment and in that case, a conviction would require a higher standard of proof and more serious allegations. High Court mentioned that the accused groped the prosecutrix over her clothes, that act doesn’t constitute Sexual Assault.



Then an appeal was filed in Supreme Court against this decision.

In name of the case

Attorney General for India V/S Satish &Anr 2021


Issue

The main issue in the case relates to the interpretation of Section 7 of the POCSO Act, 2012.


To understand this case, we have to understand Section 7 of the POCSO Act.

Section 7 of POCSO Act 2012 – With the sexual intent, touches the vagina, penis, anus, or breast of the child or makes the child touch the vagina, penis, anus, or breast of that person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to be committed sexual assault.


Supreme Court Judgment

To hear this Case Three Bench was constituted with Justice U.U Lalit, Justice S. Ravindra Bhat, and Justice Bela M. Trivedi


These three judgespronounced their judgment which is filed by the Attorney General of India, the National Commission for Women, and the State of Maharashtra against the judgment of the Maharashtra High Court.


In this, Hon’ble Supreme Court said thatthe very object of enacting the POCSO Act is to protect children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act as much 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 offense of sexual assault under Section 7 of the POCSO Act. The most important ingredient constituting the offense of sexual assault under Section 7 of the act is the ‘Sexual Intent’ and not the “Skin to Skin contact” with the child.


Conclusion

POCSO Act must be modified to remove such ambiguities. However, for the time being, any interpretation which weakens the protection of children needs to be declared ultra-vires. it can set a dangerous precedent in this society.



Reference

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