“Sexual Intent”: Supreme Court Cancels “No Skin-To-Skin Contact” Order
- Bombay High Court had acquitted a man saying, “groping a minor’s breast without ‘skin to skin contact’ can’t be termed as sexual assault under POCSO”.
- Calling it a “narrow interpretation of the law”, the court set aside a Bombay High Court judgement 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 court said that physical contact made with sexual intent comes under POCSO, and “skin to skin” contact is not the criteria.
SC on Bambay High Court
- The reasoning in the High Court’s judgment quite insensitively trivializes – indeed legitimizes -an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions.
- The High Court, therefore clearly erred in acting on such interpretation, and basing its conviction of and awarding sentence to the respondents; as it did they were guilty of sexual assault
- As per the impugned judgment, the High Court (Nagpur Bench) had acquitted an accused observing that groping of the breasts of a minor girl over her clothes will not amount to the offence of ‘sexual assault’ under Section 8 of POCSO.
- Holding that there should be ‘skin to skin’ contact to attract the offence under Section 8 POCSO, the High Court held that the act in question will only amount to a lesser offence of ‘molestation’ under Section 354 IPC.
- Restricting the interpretation of the words “touch” or “physical contact” to “skin to skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision.
- “skin to skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by the Legislature.
- The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the 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 most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child
What is POCSO Act, 2012?
- The Protection of Children from Sexual Offences (POCSO) Act, 2012 came into force with effect from 14 November, 2012. along with the Rules framed thereunder.
- The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated special courts.
- The Act defines a child as any person below 18 years of age and defines different forms of sexual abuse including penetrative and non-penetrative assault as well as sexual harassment and pornography.
- It deems a sexual assault to be “aggravated” under certain circumstances such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor.
- People who traffic children for sexual purposes are also punishable under the Act.
- POCSO prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
- Section 44 (1) of POCSO Act, 2012 provides that the National Commission for Protection of Child Rights (NCPCR) and State Commission for Protection of Child Rights (SCPCR) shall monitor the implementation of the provisions of the Act.
What are amendments made in 2019 to the POCSO Act, 2012?
- The POCSO Act was amended in order to make it more effective
- It addressed the needin dealing with cases of child sex abuse in the country. The Act was notified on 6 August, 2019, and went into effect from 16 August, 2019. for stringent measures to deter the rising trend of child sex abuse in the country on one hand and the menace of relatively new kinds of crimes on the other hand.
- The following amendments were brought under POCSO Act, 2012, through POCSO (Amendment) Act, 2019:
- Section 2 (Definitions) amended to incorporate definition of child pornography;
- Section 4 (Punishment for penetrative sexual assault) amended to increase the quantum of punishment from a minimum of seven years to minimum of 10 years, and a minimum of 20 years in case of a child below 16 years;
- Section 5 (Aggravated penetrative Sexual Assault) amended to include penetrative sexual assault during natural calamity and similar situations and causing the death of a child;
- Section 6 (Punishment for Aggravated penetrative Sexual Assault) amended to increase the quantum of minimum punishment from 10 years to a minimum of 20 years and introducing the death penalty as an option;
- Section 9 (Aggravated Sexual Assault) was amended to include assault during situations of natural calamity and similar situations. Punishment stipulated for those who give any kind of chemical substance/ hormone to induce early sexual maturity in a child for the purpose of abuse;
- Section 14 (Punishment for using Child for pornographic purposes) amended to increase the punishment to minimum of five years and to synchronise with IT Act, 2000;
- Section 15 (Punishment for storage of pornographic material involving a child) amended to introduce a fine (Rs 5,000/- on the first occasion, Rs 10,000 on the second occasion) for not reporting child porn material, which could be extended to imprisonment if such material is propagated. If the material is used for commercial purposes, then the minimum punishment will be imprisonment for not less than three years which may
- extend to five years or with fine or both and in the event of second or subsequent conviction with imprisonment for a term which may not be less than five years which may extend to seven years and also liable to be fine or with.
- Section 34 (Procedure in case of Commission of offence by child and determination of age by a special court) amended to establish consonance with the JJ Act, 2015;
- Section 42(Alternative Punishment) amended in order to acknowledge the amendment made vide Criminal Law Amendment Act, 2018;
- Section 45 (Power to make rules) amended for consequential amendments in view of amendments in sub-section (1) and (2) of Section-15.
What are the salient features of
POCSO Rules, 2020?
- Some of the important elements that were added in the new rules include the provision of mandatory police verification of staff in schools and care homes, procedures to report sexual abuse material (pornography), imparting age-appropriate child rights education among others.
What are the salient features of
POCSO Rules, 2020?
- The amendments provide for more stringent punishments in case of child sex abuse. The government is also setting up 1,023 Fast Track Special Courts (FTSCs) including 389 exclusive POCSO courts for expeditious trial and disposal of cases related to rape and the POCSO Act. The victims also get aid from the government under various compensation schemes.
- For crackdown on child pornography, any person who has received any pornographic material involving a child or any information regarding such pornographic material shall report the contents to the Special Juvenile Police Unit (SJPU) or police, or the cybercrime portal. Under the rules, the state governments will have to formulate a child protection policy.
- The Central Government and every state government shall provide periodic training including orientation programmes, sensitisation workshops and refresher courses to all persons coming in contact with the children, to sensitise them about child safety and protection.
- Any institution housing children or coming in regular contact with children including schools, creches, sports academies or any other facility for children must ensure a police verification and background check on a periodic basis of every staff.
- Rule 4 of the POCSO Rules, 2020 lays down a detailed procedure regarding care and protection, including counselling and therapy, of the victim of child sex abuse.
- Section-6 of the POCSO Rules, 2020 also has provisions regarding providing medical aid and care to the victim of child sex abuse. Provision of special relief has also been prescribed in the POCSO Rules, 2020 for contingencies such as food, clothes, transport and other essential need.
- The new POCSO rules became effective from 9 March 2020.
How many complaints have been received via POCSO e-Box?
- The NCPCR received 354 complaints through POCSO e-Box during the last three years, i.e., 2017-18, 2018-19, 2019-20 and the current year 2020-21 (till 31 January, 2021).
- As an outcome of regular follow-up, out of these 354 complaints, 140 complaints have been addressed conclusively.
Which laws in India ensure the protection and promotion of child rights?
- The Government of India legislated various child-centric Acts such as the Commissions for Protection of Child Rights Act (CPCR) 2005, Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) for protection and promotion of child rights.
- While the JJ Act, 2015 ensures the safety, security, dignity and well-being of children, the POCSO Act, 2012 is a comprehensive law that provides protection to children from the offences of sexual assault, sexual harassment and pornography.
- It safeguards the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated special courts.
What is the scope of punishment under the POCSO Act?
- Section 5 sub-clause (k) and Section 9(k) of Protection of Children from Sexual Offences (POCSO) Act, 2012 lay down that whoever taking advantage of a child’s mental or physical disability, commits ‘penetrative sexual assault’ or ‘sexual assault’ on the child, commits ‘aggravated penetrative sexual assault’ or ‘aggravated sexual assault’ respectively will be punished as per the norms laid by law.
- Section 6 of the POCSO Act lays down that whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the natural life of that person, and shall also be liable to fine, or to death.
- Section 10 of the POCSO Act stipulates that whoever commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
- Section-33 of the POCSO Act under sub-clause (8) provides that in appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child.
What are the challenges in preventing child sexual abuse?
Madhya Pradesh, Maharashtra, Uttar Pradesh, Haryana and Delhi constitute 51 percent of the POCSO cases in the country but the rate of conviction in these states is between 30 percent and 64 percent. Of the 1,023 fast track courts to be set up, 612 are already functional but there is need to establish all the sanctioned courts quickly as 89 percent of child sexual abuse cases still await trial.