The Nagpur Bench of the Bombay High Court passed a very absurd and astonishing. It passed a judgment concerning section 7 of the Prevention of Children from Sexual Offences Act 2012. The main issue before the single judge bench was whether “pressing the breasts” tantamount to sexual assault? The Court held that to attract the provisions of the above-mentioned section there necessarily has to be skin to skin contact between the victim and the accused. The Court explained that for the accused to grope the breasts of the young girl, he would have to remove her top and such an act would not attract the provisions of the POCSO Act. The accused would only be punished under section 354 of the IPC for outraging the modesty of a woman.
INFERRING THE MEANING OF SEXUAL INTENT:
The impugned ruling of the court acquitted the accused from the charges framed under the POCSO Act because his act of groping the breasts over the victim’s clothes was not committed with sexual intent. The phrase sexual intent has a broader understanding and connotation that includes all those acts which any reasonable observer would view to be of such a nature. Hence, sections 29 and 30 of the POCSO Act embody a presumption against the accused regarding his culpable mental state for any offence committed by him and cast a duty upon him to discharge such burden. Thus, the existence of “sexual intent” for any offence falling under the POCSO Act is a presumption to start with and in not considering the same, the court has acted against the objective and premise of the POCSO Act.
MISINTERPRETATION OF PHYSICAL CONTACT UNDER SECTION 7 OF THE POCSO ACT:
Section 7 of the POCSO Act punishes an accused only if he/she touches the vagina, breasts, penis or anus of a young child with sexual intent or does any sexual act involving physical contact. Although the phrases like ‘skin to skin contact’ and ‘sexual content’ are not that well defines in the Indian statutes, there are various rulings and judgments of the High Court wherein the Court ruled that the acts of the accused such as groping of the breasts of the victim would attract section 7 of the POCSO Act notwithstanding as to whether there was a physical or skin to skin contact. The mere sexual activity of the of the accused is sufficient enough to prove that he/she had a sexual intent and is sufficient enough to attract the provisions of section 7 of the Act. The main reason to introduce the POCSO Act was to prevent child abuse and provide speedy and friendly justice to the victims. The Act aims to protect the victims of sexual assault and varied forms of sexual abuse by penalizing the aggravated forms of penetrative and non-penetrative assault.
VIEWING SEXUAL ASSAULT FROM AN INTERNATIONAL PERSPECTIVE:
The UK’s Sexual Offences Act 2003, punishes an accused for all kinds of derogatory sexual activities and it is not limited to the conduct of the accused it also punishes any sexually coloured remark on a woman or a child and brings it under the wider connotation of sexual assault. Section 3 of the Act defines sexual assault as the intentional touching by an accused which is sexual and is without the consent of the victim or where the accused had no reasonable belief that the victim consented to such touching. In the landmark case of R vs. Court (1989) AC 28, a 12-year-old girl was spanked on the buttocks by a shopkeeper and the Court and the Court opined that the phrase ‘indecent’ had to be seen from a broader perspective i.e. to be overtly sexual such that any right-minded person would consider it to be of such a nature. Thus we can say that the International standpoint has done away with the concept of skin to skin contact and given it a broader perspective and that it could be adduced from the activities of the accused person.
The Indian POCSO Act 2003 very much resembles the UK’s Sexual Offences Act. It proposes to curb and reduce the violence and child abuse against children and women and also provide speedy and friendly justice to the victims. There are many social taboos that are attached and come along with the commission of such crimes and it is only the victim who has to face such issues and difficulties. Such issues weaken the mental health of an individual and sometimes also leave a long time effect on a person.