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Good or Bad Touch? Bombay HC Order on 'Skin to Skin' Groping in POCSO Case Raises Questions

A Bombay High Court bench's definition of what constitutes as sexual assault under POCSO has led to outrage among experts of child safety and survivors | Image credit: Reuters

A Bombay High Court bench's definition of what constitutes as sexual assault under POCSO has led to outrage among experts of child safety and survivors | Image credit: Reuters

The Bombay High Court judgement has come as a shock not only to survivors but also to child safety and protection experts who feel that the move sets a 'dangerous' precedent for defining sexual assault in court.

Kolkata-based women’s rights activist Pranadhika Devburman who is a survivor of child sexual abuse and violence, found herself triggered last week when she read about a Bombay High Court verdict regarding a case of groping of a minor girl.

The 12-year-old girl had reportedly been groped by a 39-year-old man in December 2016. After four years, the Nagpur bench of the Bombay High Court headed by Justice Pushpa Ganediwala found that the accused did grope the child but it did not constitute as sexual assault punishable with POCSO but instead constituted the offence of outraging a woman’s modesty under IPC section 354. The reason? The girl reportedly had her top on and since there was no “skin to skin contact", the groping could not be ruled as an assault.

“I was shocked to read the verdict. The way it casually referred to the minor’s breasts, the callous definition of assault - as a survivor of sexual violence, I feel the verdict does not empower the survivor at all but rather her abuser," Pranadhika says, calling the verdict “trigerring".

Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgment passed on January 19, held that there must be “skin to skin contact with sexual intent" for an act to be considered sexual assault. She said in her verdict that mere groping will not fall under the definition of sexual assault.

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“Imagine explaining to a young girl in India that if a man forcibly touches her under her clothes it’s assault but if he does so over her top or pants, it’s not," Pranadhika says. The founder of One Million Against Child Abuse - a campaign that helps children including survivors of sexual abuse with mental health counseling and physical support, Pranaadhika also runs an online petition asking for judiciary sensitization and protection for rape survivors and witnesses and wonders the impact such a judgment would have on the mental health of survivors.

What is sexual assault?

The Bombay HC verdict has come as a shock not only to survivors but also to child safety and protection experts who feel that the move sets a “dangerous" precedent for defining sexual assault in court.

“It is absurd to say that sexual assault does not take place with clothes on. Think of all the women who get molested in public places," Bharti Ali, executive director of HAQ Centre for Child Rights, tells News18. “This kind of of a definition of what constitutes as groping is nor only unfair but also damaging to how all future cases of groping shall be treated in courts."

“POCSO’s Section 8 mentions physical contact but the provision in the law does not describe what physical contact is. In that sense, this interpretation of the law is dangerous as it implies that sexual assault can only take place without clothes on," child safety lawyer Anant Asthana tells News18.

The High Court judgement modified the order of a sessions court, which had sentenced the 39-year-old accused to three years of imprisonment for sexually assaulting a 12-year-old girl.

The judge instead held that the incident constituted the offence of outraging a woman’s modesty under IPC section 354, which entails a minimum sentence of imprisonment for one year. (Sexual assault under the POCSO Act entails minimum imprisonment of three years).

This, the lawyer points out, is the other side of the coin. Asthana feels that the reduced sentence reflects desperation on the part of the judge to highlight the need to take a second look at the way we punish sexual abusers. It is not a judgment in favour of the victim but one against harsh punitive actions for sexual crimes.

“Since 2018, laws against sexual crimes bordered on harsher punishment, with minimum mandatory punishment such as the one under POCSO not allowing judges to practice their discretion case to case," Asthana says. “While the judgment is dangerous in its interpretation of sexual assault, it is a telling sign of the problem courts are facing with laws mandating minimum punishment for sexual crimes with a ‘one-size-fits-all’ approach". The advocate adds in that sense, the judgment was welcome as it went against the trend to teeth sexual harassment laws with harsher punishments with an aim to reduce crime - a notion is often accused of being ineffectual in containing violence against women.

Be that as it may, the lawyer felt that coming up with new definitions to justify lesser punishment was not welcome if came at the cost of children’s safety.

“I definitely hope the state challenges the judgment, that is the only way to get justice for the victim," Asthana says, adding, “children cannot pay the price for reforming laws".

Good touch or bad touch?

While the verdict might be welcome for calling for, experts across spectrums agree the judgment, if not reversed, may end up having an adverse impact on child sexual safety.

Speaking to News18, Child Protection Head at Save the Children, Prabhat Kumar says that the judgment will further hamper the agency of children to report sexual crimes. “In the field, we have seen how difficult it is for minors to come up and report sexual crimes, even to their families. Such interpretations of the law further increase the fear and anxiety faced by children over what constitutes a good touch or bad touch,"

The verdict further complicates the case for women in reporting cases of molestation to law enforcement as it increases the chances of victim-shaming. “In many cases that we have noted, local law enforcement refuses to lodge complaints by women who in turn face abuse from police officers in the form of questions regarding unnecessary details such as the length of their clothes," Kumar says, adding that the “skin to skin" interpretation of groping puts the one onus on women - even minors - in proving if their top was on when the accused touched their breast.

Ali, from HAQ, further explains that when it came to children, being subjected to degrading questions - whether they had their top on or off, whether they were touched over over the pants or not - could have a drastic impact on mental health.

Even as experts hope for the state of Maharashtra to appeal against the Nagpur bench’s verdict, the case has brought to light the need for a deeper understanding of what constitutes as a sexual offense, not from the perspective of the harshness of punishment it needs to incur but by way of correcting the injustice caused to the victim and providing safe spaces survivors of abuse when it comes to reporting sexual crimes.

Meanwhile, the National Commission for Women (NCW) said it will challenge in the Supreme Court the Bombay High Court judgment. This judgment will not only have a cascading effect on various provisions involving the safety and security of women in general but also subject all women to ridicule, NCW Chairperson Rekha Sharma said.

Update:

The Supreme Court on Wednesday stayed the Bombay High Court’s controversial order acquitting an accused, which had stated ‘skin-to-skin’ contact necessary to be classified as sexual assault under the POCSO Act. Attorney General KK Venugopal said the order would set a dangerous precedent.

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