Is ‘skin-to-skin contact’ necessary to prove sexual assault’?

‘There is no mention of skin-to-skin or direct contact as necessary ingredient for qualifying as sexual assault under POCSO Act. Then Bombay HC’s acquittal of a man for not fulfilling such a requirement is not only odd, but wholly unnecessary and unfair on the victim’

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JB Patnaik, the then Odisha Chief Minister, stepped down following the gangrape charges. Representational purpose. Photo: iStock

The Bombay High Court recently reduced a man’s punishment saying there was no skin-to-skin contact between the man himself and the child he had groped. Question: Is skin-to-skin contact necessary to convict a man under Protection of Children from Sexual Offences (POCSO) Act of 2012?

Consider this: You’ve just been groped on a crowded bus or train. Or perhaps, as is the case with most child sexual abuse victims, a relative did that to you. Would you consider this as sexual assault? Quite certainly, Yes.

However, Justice Pushpa Ganediwala says the answer is No, unless there has been skin-to-skin contact in the act of groping. Such an appalling observation was made in a recent order passed by the honourable judge in the matter of Satish Ragde vs State of Maharashtra. There are angry tweets aplenty, and now the National Commission for Women (NCW) is all set to challenge this order in the Supreme Court.

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The Attorney General of India, KK Venugopal brought this case to the notice of the Supreme Court yesterday and thankfully, this order has been stayed, and he has been asked to file a proper petition against this judgement.

What is the outrage really about?

A 39-year old man was accused of sexually assaulting a 12-year old girl in Nagpur. He took her to his house, tried to remove her salwar, and pressed her breast. He was convicted under Section 354 (outraging a woman’s modesty), Section 363 (punishment for kidnapping), and Section 342 (wrongful confinement) of the Indian Penal Code, and under Section 8 (punishment for sexual assault) of the Protection of Children from Sexual Offences (POCSO) Act.

He then appealed to the Bombay High Court against this conviction.

Also read: SC stays Bombay HC ruling on groping of 12-year-old

While looking into the appeal, the main question that was in consideration for the court was whether ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘sexual assault’ under the POCSO Act. Sexual assault is a wide term and in its most basic understanding would mean as any harm done to a person in a sexual manner. In other words, a non-consensual act that is sexual in nature. A sexual offence, if you may say so.

What is ‘sexual assault’ according to POCSO Act?

Section 7 of the POCSO Act defines ‘sexual assault’. If a certain harmful ‘sexual conduct’ has to be charged as ‘sexual assault’ under the Act, it must meet certain criteria. For starters, there must be ‘sexual intent’. Additionally, there must be ‘touching’ of the vagina, penis, anus, or breast of the child. It is important to note that this definition of ‘sexual assault’ does not include penetration. It merely states that there must be physical contact with ‘sexual intent’.

So, was there any physical contact? Yes, there was. Pressing breasts is physical contact. The judgment noted that the victim and the key witnesses were consistent in their testimonies and the accused has not been able to prove otherwise.

Also read: Groping without ‘skin to skin contact’ not sexual abuse under POCSO: HC

Going further, was there sexual intent? Yes, there was. According to the victim’s testimony, the accused caught her hand, took her to his house, tried to remove her salwar and pressed her breast. When she shouted, he pressed his hand on her mouth. At its simplest, removing salwar and pressing breasts amply indicate sexual intent.

So based on such understanding, should the accused have been held guilty under Section 7 of POCSO Act? Well, Justice Pushpa Ganediwala disagrees.

Justice Ganediwala has interpreted the meaning of ‘touching’ and ‘physical contact’ in Section 7 of POCSO Act and included a qualifier of her own — ‘direct’ contact, i.e. skin-to-skin contact. She says: “Admittedly, it is not the case of the [victim] that the [accused] removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration.”

Justice Ganediwala ruled that since there was no skin-to-skin contact, it does not fulfill the second criteria we just talked about, which is needed to qualify for Section 7: physical contact along with sexual intent. Hence, the accused was acquitted of his earlier conviction under POCSO Act.

Outrage and Outrage of Modesty

Well, here lies the bone of contention, without any layers of pretence. There is no mention of skin-to-skin or direct contact as necessary ingredient for qualifying as sexual assault under Section 7 of POCSO Act.

Supreme Court lawyer Srishti Agnihotri says, “When interpreting whether an offence is made out under the Section, the entire section has to be considered. However, physical contact does not necessarily include skin to skin contact, and the interpretation (made by Justice Ganediwala) completely ignores the context and purpose of the POCSO Act.”

So, if direct contact was never a requirement to begin with, then acquitting a man for not fulfilling such a requirement is not only odd, but wholly unnecessary and unfair on the victim, don’t you think?

The accused was only acquitted of his charges under POCSO. His punishment was downgraded as a ‘minor offence’ under Section 354. In simple words, the actions of this man has not been considered as ‘sexual assault’ under the POCSO Act, but as ‘outraging the modesty of a woman’ under the Indian Penal Code. The former is a special Act legislated towards protecting children from sexual offences and the latter has lesser punishment comparatively.

But, why was the punishment made to be lesser in this order? Precisely, because the POCSO Act has stricter punishment, which may even include death penalty. Quite naturally, the allegations and proofs required must be stricter as well. Justice Pushpa Ganediwala states: “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.”

It is justified to need stronger proof and details while serving stricter punishments. The punishment is quite strict indeed and as Justice Ganediwala’s order says, we don’t know if the accused had removed the victim’s top before pressing her breast or not. Punishment for an offence must be proportionate to the seriousness of the crime. If a less stricter IPC section has been considered instead of a stringent POCSO, then the offensive act done by the accused has been ruled to be less serious in nature.

Which brings us back to the main point of our collective outrage. It was sufficiently proven in the judgment that the accused had pressed the victim’s breast. Now, is this offensive act not serious enough? The question that begs to be answered is that, why must a victim’s top be removed for such a sexual assault to be considered serious enough for POCSO?

What is the impact of this judgment?

A survey conducted by Thomson Reuters Foundation in 2018 ranked India as the coveted winner of the title of ‘most dangerous country for women.’ Every day, an average of 130 children are sexually abused in India. These are numbers found in the National Crime Record Bureau (NCRB) report of 2019, which marked an increase of 19% from the total number of cases reported in 2018. It is important to note that this data is only for reported cases. Most cases go unreported for various reasons, including closeness/kinship with the perpetrator and lack of trust in tedious police and judicial systems.

When the situation is already bleak, an appalling judgment like the one given by Justice Ganediwala only exacerbates the divide between the common public and our legal justice system. The bar for proving sexual assault has just been raised higher than before. It is mighty difficult as it is currently, and such judgments are demotivating, demoralizing at worst and dehumanizing at best.

A major impact of the judgment is the outcome on male children of sexual abuse. For a female victim of sexual assault, we have many IPC Sections that can be referred to in cases where POCSO cannot be applied, including Section 376 (Rape).  Most commonly sought after IPC sections are Section 354 (Assault on women with intent to outrage her modesty) and Section 509 (Insult to the modesty of Women). But for male victims, especially children, who are also protected under POCSO Act, they have no refuge under an IPC section that will attempt to protect their modesty.

So now we have a dilemma. If a pedeophile decides to press the penis of a male child from outside his underpants, will it be considered a sexual assault? According to Justice Pushpa Ganediwala, No. Because the boy still had his underpants on! Female victims can opt for Section 354, but to whose modesty will the boys appeal to?

Even though an overwhelming majority of victims of child sexual offences are females, male victims face still many difficulties in coming forward. The society still believes men can’t be raped and many young and under-age boys don’t see sexual acts committed by older women as an ‘assault’. This stems from the patriarchal notion that men are overtly sexual beings and their sexual activities, consensual or not, must be seen as conquests. In a world where men’s mental health is underserved, their sexual assault underplayed, Justice Ganediwala’s order is making their world harsher and more alienated.

Advocate Srishti Agnihotri agrees. “It is correct that a male child would be left out of the ambit of Section 354, which again illustrates the manner in which the judgment has ignored the purpose and context behind the POCSO Act, which was enacted to protect all children from sexual assault,” she says.

So, what next?

The National Commission for Protection of Child Rights (NPCR) has now asked the Government of Maharashtra to urgently review the order passed by Justice Ganediwala and take ‘appropriate steps’. The National Commission for Women (NCW) has also decided to challenge this order before the Apex Court.

The legal battle continues. We can only hope that when the apex court presides over this case, it also provides us with a clear definition of sexual assault that does not leave room for interpretations that can dilute the purpose of seeking justice.

If history has taught us anything, the social media outrage over this judgment would possibly simmer down and this judgment will be buried in our legal justice system as yet another deliverance, much as marrying your rapist if there’s a child born out of the intercourse, and many such other lesser remembered judicious orders gifted to the women’s rights movement in India.

Justice? My revered lady? Have you been served yet? If yes, then for whom?

(Sonam Mittal is a feminism activist and writer who has worked on issues regarding environment, human rights and gender equality)

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal).

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