Touchy Interpretation Of Child Sexual Assault By Bombay High Court

The Bombay High Court, in a controversial order passed last week, held that groping a child's breasts without 'skin-to-skin contact' would amount to molestation under the Indian Penal Code but not the graver offence of 'sexual assault' under the Protection of Children from Sexual Offenses (POCSO) Act.

As per Section 7 of POCSO Act, 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. This means, if a person, with sexual intent, (1)  'touches' the vagina, penis, anus or breast of the child or (2) makes the child touch the vagina, penis, anus or breast of such person or any other person, or (3) does any other act with sexual intent which involves physical contact without penetration, -he/she is committing a sexual assault on the child.

Interpreting these provisions, the Bombay High Court held that, 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'. This, according to judge, is the intent of Section 7, as there is no direct physical contact i.e. skin to skin with sexual intent.

In this case, the prosecution case was that the accused took away the girl child aged about 12 years, on the pretext of giving her guava, in his house and pressed her breast and attempted to remove her salwar. In other words, the accused is charged with first part of Section 7, that is, he touched the breast of the child with sexual intent. However, the focus of the High Court remained on third part of Section 7 i.e. 'does any other act with sexual intent which involves physical contact without penetration'. According to judge physical contact means 'skin to skin' contact without any dress/cloth in between. The judgment nowhere discusses whether touching a breast or any private part through the dress will amount to Sexual Assault under Section 7 of the POCSO Act.

Be that as it may, the question is whether 'physical contact' includes contact without a cloth in between? The term 'physical contact' also features in Section 354A:- Sexual harassment and punishment for sexual harassment. It provides that a man committing any of the following acts— physical contact and advances involving unwelcome and explicit sexual overtures- shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. 

Neither the POCSO Act or any other laws in India define what is 'touching' or 'physical contact' and this ambiguity has facilitated the absurd interpretation that touching breasts through the cloths worn by the child is not a sexual assault. 

Sexual Offences Act 2003 of United Kingdom defines Sexual Assault as follows: (1) A person (A) commits an offence if— (a) he intentionally touches another person (B), (b) the touching is sexual, (c) B does not consent to the touching, and (d) A does not reasonably believe that B consents. Section 79(8) defines Touching to include touching— (a) with any part of the body, (b) with anything else, (c) through anything, and in particular includes touching amounting to penetration. Similar provisions existed in Sexual Offences Act 1956 also.

In R vs. H, the Court of Appeals UK, interpreted this provision in a judgment dismissing appeal filed a man accused of grabbing a woman's tracksuit bottoms by the fabric in the area of the right pocket and attempted to pull her towards him. It was contended before the court that the touching of the tracksuit bottoms alone did not amount to the touching of another person. 

"Where a person is wearing clothing we consider that touching of the clothing constitutes touching for the purpose of the section 3 offence. It is important to note that the opening words of section 79(8) are "touching includes touching" and in particular "through anything". Subsection (8) is not a definition section. We have no doubt that it was not Parliament's intention by the use of that language to make it impossible to regard as a sexual assault touching which took place by touching what the victim was wearing at the time.", the court held. 

Similarly Scottish law also makes it clear that 'physical contact' includes bodily contact or contact by means of an implement or through clothing. Section 20 defines Sexual assault on a young child as follows: "(1) If a person ("A") does any of the things mentioned in subsection (2) ("B" being in each case a child who has not attained the age of 13 years), then A commits an offence, to be known as the offence of sexual assault on a young child. (2) Those things are, that A— (a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B, (b) intentionally or recklessly touches B sexually, (c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B, (d) intentionally or recklessly ejaculates semen onto B, (e) intentionally or recklessly emits urine or saliva onto B sexually."

Child Abuse and Neglect Reporting Act of California (USA) defines sexual assault to include 'the intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, '

Lack of similar definitions in POCSO Act leads to outrageous interpretations by the Courts of Law.  Last year, an accused was granted bail by a court on the ground that the accused has touched the body of the victim girl only over her dress. In a petition filed by the complainant, Kerala High Court set aside the order holding that such observations are erroneous, 'to say the least'. If the act of touching the private parts without cloths in between is an offence with a minimum imprisonment of three years, it is quite illogical to contend or hold that such an act over the cloths would only be an offence under Section 354 IPC, which has lesser punishment. 

Yet another problem with the Bombay High Court's interpretation is this: If the victim was a boy child and he was abused by a person by holding his genitals through the pants (without disrobing him), he will have no remedy either in POCSO, or Indian Penal Code since Section 354 applies only to sexual assault on woman. This also sets a dangerous precedent since many cases of child sexual abuses are about external 'groping' and the misinterpretation by the High Court can help sexual predators escape from the clutches of this enactment which is intended to make the world a safer place for children. 

The plain reading of Section 7 of POCSO Act makes it clear that it covers offence of groping even without disrobing the victim. Even as per Mischief Rule of interpretation, four aspects have to be considered while construing an Act: (i) What was the law before the making of the Act, (ii) What was the mischief or defect for which the law did not provide, (iii) What is the remedy that the Act has provided, and (iv) What is the reason of the remedy. The rule then directs that the courts must adopt that construction which "shall suppress the mischief and advance the remedy".

One of the objectives for enacting POCSO is to prevent the inducement or coercion of a child to engage in any unlawful sexual activity and also to ensure that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.

The Bombay High Court's misinterpretation, in my opinion, suppresses the remedy and advances the mischief.