Can The Definition Of Assault Be Limited To Skin To Skin Contact?

Sexual crimes in India tend to make headlines in our country only when the crime is so gruesome that it makes your skin crawl. Or when the resultant investigation and legal proceedings make up for a bizarre headline, exposing the fault lines of our criminal justice system. In a recent judgement that falls under this category, a Bombay High Court bench ruled that groping a minor without "skin to skin contact" isn't sexual assault.

The observation was made by Justice Pushpa Ganediwala of the Nagpur bench at Bombay HC, in connection with a 2016 case, where a 12-year-old girl was reportedly lured by a 39-year-old man to his house, where he allegedly groped her breasts and tried to undo her salwar. According to a report by Hindustan Times, Justice Ganediwala observed that since the accused groped the survivor without removing her top, the offence cannot be termed as sexual assault, which incurs minimum imprisonment of three years as per POCSO act. The offence will, however, come under section 354, outraging a woman's modesty, which entails for minimum imprisonment of one year.

"Considering the stringent nature of punishment provided for the offence (under POCSO), in the opinion of this court, stricter proof and serious allegations are required, "said the high court order dated January 19, adding that the act of pressing of a breast of the child aged 12 years, in the absence of any further details on whether the top was removed or the accused inserted his hand inside the top and pressed her breast, "would not fall in the definition of sexual assault."

So how does the POCSO Act define sexual assault? It says that when a person "when someone "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."

Justice Ganediwala's verdict has generated outrage on social media, as many people have questioned, how it may impact the general understanding of sexual assault, and would it let perpetrators get away with online sexual abuse, verbals sexual assault, or physical assault, that can't be proven to have "sexual intent" with less severe punishment. Does this verdict make legal recourse harder for minor survivors of sexual assault? Does it leave make children more vulnerable to sexual crimes, where accused can use no skin-to-skin contact as an escape route, and return to the folds of society, carrying on with their heinous crimes? Or is Indian media giving this issue an incorrect coverage, by focussing on just one part of the judgement? All of these are valid questions.

Understanding the judgement

Supreme Court Lawyer Nappinai NS says that section seven of the POCSO Act, under which sexual assault is set out, nowhere does it say that there has to be “skin to skin contact”. She specifies that “sexual intent” is clearly made out in the case, which is why the IPC offences have been upheld. “If you look at the judgement, the aspect of two witnesses’ evidence with respect to touch is accepted. The mistake appears to be that “which involves physical contact” (in reference to sexual assault definition) is interpreted as skin-to-skin contact.”

Nappinai says that section seven of POCSO actually covers three different kinds of offences. The first being sexual intent in touching of vagina, penis, anus and breast. Second is when a person makes a child touch the said body parts. The third part is doing any act with sexual intent, which involved physical contact.

“If you look at the judgement, where and how, and what is the reasoning to interpret the section that it insists on the skin to skin contact, is completely missing,” adds Nappinai.

Calling the judgement “completely fallacious” Nappinai says that it interprets section seven wrongly, and is going to have “very grave and serious consequences in terms of protecting children. And that is the whole intent and purpose of POCSO, and this (interpretation) completely dilutes it, to say the least."

How the judgement may shape the understanding of sexual assault

According to social activist Priti Patkar, who is the co-founder and director of Prerna, an organisation committed to protecting children vulnerable to commercial sexual exploitation and trafficking, media coverage of the judgement so far has done more harm than good. “What is detrimental is the headline and it takes back several years when there was this understanding that if it is not penetrative, it can’t amount to sexual assault. In the last many years, especially with POCSO, we’ve tried to bring about the change in understanding of the definition of sexual assault, that it is touch and non-touch. And now the fear is that lost of duty-bearers are just going to get stuck with that one sentence. As it is there is so much of reluctance to file a case. Reluctance on the part law enforcement and also fear on the part of the victim. Disclosures are always happening so late because, because the victim is not confident.”

Patkar adds that the skin to skin contact judgement is akin to saying that unless you see blood oozing out or black and blue wounds, it is not violent. Her main fear is how this judgement will shape the understanding among people, that sexual assault has to be contact based.

Nappinai NS asks, "When have we ever taught that bad touch was only skin to skin? Who amongst us, male or female, would not feel violated if somebody touches our private parts from above the clothes?" 

“The way people are going to process the statement, including the police. Everybody is going to have their different interpretation. And who are these everybodies? Those who anyway doubted children and women. Those who are in the power position, without whom the case will not move forward.”

Patkar opines that we need to work on getting that said statement out of the judgement, while also criticising the media for playing with just the one line and puting it everywhere.

Should POCSO be modified?

The other part of Justice Ganediwala's judgement that has raised concerns is about proving the sexual intent of an accused. It leaves us asking, how do you prove that a person grabbed your breasts with the intent to sexually assault a minor? How do you prove that touching a child's private parts, even when they are covered with clothes, can have a sexual motive? Do we need to dilute the POCSO act, so that intent doesn't have to be proved?

While the concern about proving sexual intent is genuine, Nappinai strongly advises against diluting POCSO. She opines that the dilution of the clause related to sexual assault in POCSO could lead to abuse of the act for ulterior gains and create an unnatural living situation for each one of us. Every person would have to think twice before so much as playing with a small child. Warring neighbours, for instance, could misuse dilution of POCSO to one-up each other. “Imagine what would happen if you touch a child’s ABCD parts…even a parent can be hauled up. It will be an open invitation to abuse.”

She furthers says that it is absurd to "even assume that you should change it in some manner because firstly it negates the purpose of the act, secondly it is not enforceable then.”

While opinions may vary on Ganediwala's judgement, we cannot deny the fact that there is a massive gap in understanding about what counts as abuse or assault of sexual nature, even among those who are meant to help survivors get justice. What we have in form of a verdict here is a set of words, that could be treated as a guide by guardians and people of power to deny justice, or to further lengthen the due process for survivors of sexual assault. Sadly, at the end of the day, the people who lose here are our children, who are vulnerable and dependant on adults for their safeguarding.

Update: On January 27, The Supreme Court of India stayed the Bombay High Court's acquittal order of the accused in the said case. The stay order was passed by a SC bench, led by Chief Justice of India, based on a mention made by the Attorney General, KK Venugopal. CJI Bobde has further directed AG Venugopal to file a proper petition challenging the judgment by Justice Ganediwala.

The views expressed are the author's own.