POCSO Judgment

The Supreme Court, in a significant order last week, has ruled that “skin to skin” contact is not necessary for a crime to be considered under the Protection of Children from Sexual Offences (POCSO) Act. Calling it a “narrow interpretation of
the law”, the court set aside a Bombay High Court judgment that had acquitted a man saying, “groping a minor’s breast without ‘skin to skin contact’ can’t be termed as sexual assault under POCSO”. Pointing out that the objective of POCSO is to protect children from sexual abuse, the apex court said that physical contact made with sexual intent
comes under POCSO, and “skin to skin” contact is not the criteria. Attorney General K.K. Venugopal had opposed the Bombay HC verdict arguing that the court’s interpretation would mean that “someone can wear a surgical glove and exploit a child and get away scot-free”. He had added that it will be treated as precedent and the result will be
“devastating”. The POCSO Act defines sexual assault as 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”. The judgment has firmly and clearly cemented the legal safeguards for children and women against sexual assault that is so rampant. The Supreme Court by overruling the impugned order of the Bombay High Court by which a man had escaped the charge of sexually abusing a 12-year-old girl has rightly held that the intent of sexual assault by the accused was the decisive factor for conviction as the modesty of the victim is outraged, whether the touch was direct or indirect. Holding such an accused guilty is in the spirit of the legislation enacted to protect a child’s dignity and autonomy from undesirable intrusions.

It may be recalled that the Protection of Children from Sexual Offences (POCSO) Act, enacted in 2012 to shield children from sexual abuse, distinctly says that any act with sexual intent which involves physical contact without penetration is sexual assault. An attempt to create ambiguity in this matter would be an error of judgment, leading ‘to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case, touching sexual or non-sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent, would not amount to an offence of sexual assault under Section 7 of the POCSO Act,’ the SC Bench pointed out. For a country that reported over 43,000 POCSO offences in the past one year and where the conviction rates are abysmally low, the Supreme Court observation that when two interpretations are possible, the one favorable to children must be upheld is well-timed.

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