Skin to skin POCSO order: Sexual intent sufficient to constitute offence, Amicus tells Supreme Court

The Supreme Court on Thursday said that they have to restrict themselves to “skin-to-skin” part, whether the High Court was right while passing the skin to skin contact is a requirement of the section or not?

The Court made the above observation, while hearing the arguments by Amicus Curiae Siddhartha Dave that there is an absence of “mens rea” in Section 3 of the POCSO Act. “What I say is the sexual intent should be sufficient to constitute an offence…,” he opined.

Justice U.U. Lalit asked, “Whether a man makes a child to touch his body part, is that covered or not?”

Amicus replied, “Yes it’s covered. Section 3C POCSO Act provides for that. According to Section 3 of the POCSO Act, a person is said to commit “penetrative sexual assault,” if he manipulates any part of the body of the child, so as to cause penetration into the vagina, urethra, anus or any part of the body of the child or make the child to do so with him or any other person.

Then Amicus went on to read Section 7 of the POCSO Act, which defines “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, which also comprises Justices S. Ravindra Bhat and Bela M. Trivedi, said that there are two part in this section- “First” is Sexual intent must be discernible, is the limb of Section 7, and “any other act” is the “second part” of Section 7 POCSO Act.

Then, the Amicus went on to read Section 11 of the POCSO Act deals with “Sexual Harassment and Punishment.”

The Court, at this point, said that it is only concerned with the aspect whether the Bombay High Court was right, while passing the “skin-to-skin” contact is a requirement of the Section or not?

The Apex Court was hearing an appeal against the Bombay High Court judgment, which said that groping a minor without “skin-to-skin contact” cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.

Today, the Court has heard the submissions made by Senior Advocate Geeta Luthra appearing for National Commission for Women, who argued that in essence, the skin to skin condition has been given an artificial meaning.

After quoting a plethora of American judgement and other judgments and basing her arguments on two English judgements, she pointed out the rules of interpretation for such statutes like the POCSO, the interests of children are of foremost importance.

Quoting the UDHR and special committee on women and child rights, Ms Luthra said the essence of such statutes is to protect in substance the interests and modesty of children. It is not the case of prosecution that there was innocent intention of the accused; however the technicality of the skin to skin touch as an absolute essential defeats the legislative intention itself. It was further pointed out that the words of the statute are not restrictive but expansive. Hence, the contention that a medium of condom, glove or cloth would not amount to sexual assault is wrong in law.

The Court said it is not the case of the prosecution that the accused had innocent intention. The court further stated that not much adjudication is required in this matter and the interests of the child in consonance with the statement of objects of the legislation.

The Court adjourned its hearing till tomorrow.

On an earlier hearing, Attorney General K.K. Venugopal had strongly objected to the judgement passed by the Bombay High Court, which held ‘skin-to-skin’ contact is necessary to constitute sexual assault under POCSO Act. Terming it “outrageous”, the AG had said that a person wearing surgical gloves can feel the entire body of a woman and get away with punishment.

During the hearing on August 24, the AG had said “According to me, it’s an outrageous judgement so far as POSCO is concerned because the entire story behind the acquitting of the accused of the offence is punishable under Section 8, which says ‘touching the breast’, itself is sufficient. The High Court had said skin to skin contact is required. The punishment under Section 8 is minimum 3-5 years and that the judge appears to think is disproportionate to touching the breast through the top. Not only that, the accused also tried to put off the salwar of a child. Milord, consider this whether the pressing of breast and attempt to remove would fall within the definition of sexual assault as described under Section 7 and punishable under Section 8?”

He said, “As per the definition of sexual assault which involves physical contact without penetration to commit sexual assault with sexual intent. Therefore, here the accused had sexual intent while touching the child’s breast, which is physical contact. There is no case if the top was removed or not. The high court had modified the order of a sessions court, which sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl.”

Further, he pointed out that there are 43,000 POCSO offences in last one year. “So, tomorrow, any person with surgical gloves who feels the entire body of a woman including her vagina without penetration, then the punishment of three years would not apply to him?” He questioned. “This is outrageous and this is setting a precedent. Apparently, the judge did not consider its consequences,” he argued.

The Court had previously also issued notice in a plea filed by the National Commission for Women aggrieved by the HC order, and the perverse interpretation adopted by the High Court that the term ‘physical contact’ in Section 7, POCSO Act means only ‘skin to skin touch’.

The plea filed by it raised various questions 1. Whether to constitute an offence under Section 7 of the POCSO Act, the only requirement is to touch a child with sexual intent?

Whether the impugned order has far reaching ramifications/repercussions for women, exposing them to a desensitized Society?

The petitioner has further submitted that such a narrow interpretation adopted in the impugned order sets a dangerous precedent, which would have a cascading effect on the safety of women and children.

Earlier, the Apex Court had stayed the acquittal of the accused on the matter after it was mentioned by Attorney General K.K. Venugopal.

On January 19, the Nagpur bench of Bombay High Court had acquitted a man of sexual assault on the grounds that pressing the breasts of a child over her clothes without direct ‘skin-to-skin’ physical contact does not constitute “sexual assault” under the POCSO Act.

The bench dismissed another petition filed by Bharatiya Stree Shakti, challenging the same order while stating that the petitioner did not have locus in the present case.
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