Does the absence of physical contact really not amount to sexual assault?
By: Umang Malik, First Year, Faculty of Law, Delhi University
In the recent controversial case of “Satish vs. State Of Maharashtra”, a single judge bench couldn’t find “physical contact” with sexual intent in an incident a girl child, aged 12 years was groped by the accused who further went to the point of undressing her.
– The girl child, under the pretext of being given fruits, was taken by the accused to his house.
– The mother of the girl, who was not at home when this was happening, returned to find her daughter missing, as a result of which, she went out looking for her.
– Her neighbor mentioned spotting the 12-year-old with the accused. On seeing the accused, the mother asked about the whereabouts of her daughter. He straight away denied having any information about the same.
– On reaching the house of the accused, she found his door latched from the outside and her daughter inside, crying.
– The daughter immediately told her mother that on the pretext of giving guavas to her, the appellant brought her to his house, pressed her breast and tried to undress her. When she resisted and shouted, he locked her inside.
– The neighbour also attested to having heard the girl cry out for help.
Whether the act of the accused amounted to sexual assault under Section 7 of the POCSO Act?
Does groping the breast and attempt to remove the salwar of a girl child without her consent amount to sexual assault, apart from outraging modesty of a woman?
The learned judge of the Bombay HC said there could not be a sexual assault without actual skin to skin contact, unless the hand was inserted inside the clothing or the clothes were removed for the act of groping. He further went on to say that the acts of the accused did amount to outraging the modesty of a woman but not to sexual assault, as it was essential under Section 7 of POCSO for there to be physical contact with sexual intent, which in the current case, was missing.
The Supreme Court on 27th January 2021 has stayed the judgment of the skin-to-skin contact without disrobing. Also the Attorney General of India has expressed his views as the judgment is “likely to set a dangerous precedent” while also condemning the publishing of the victim’s name.
To get a better understanding of the legal perspective, it is essential to look at the definition of sexual assault and precedents regarding the same.
“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”.
The definition is very clear about the action and also gives a wider scope under ‘any other act’.
Section 351 of the IPC defines assault as the apprehension of use of criminal force. Here the learned judge has completed looked out of the window for the interpretation of “physical contact” only meaning to skin to skin contact.
In Satranjan vs State Of Uttarakhand, the victim was taken away by the accused by gagging her while she was on her way to school. The accused molested the girl and there was no sign of sexual intercourse. The injury was the cut on her lips and the accused was held liable under Section 8 of POCSO act.
Sathish Kumar vs. State Rep., in a similar case the Madras HC, where the girl was forcibly taken into the bushes and pinned down the girl, the accused laid on her and pressed her breast. The victim screamed and the mother came to her rescue. The accused was held liable u/s 7 of POCSO and 354 of IPC.
In the recent case of “Hathras”, the ADG had the audacity to discourage the dying declaration of the victim in front of the media.
In the “Badaun case of 2021”, the deceased was gang-raped and murdered and the police officials took 18 hours to take the dead body to the mortuary. SHO of Ughaiti police station was suspended for “delay in informing higher authorities, laxity in taking action, dereliction of duty, and failure in taking speedy action.
Throughout our life we have been taught that any inappropriate touching, without the consent is termed in an innocent way as “bad touch”.
- The right word for such inappropriate touching can only be justified by the quantum of the act and the area of the body.
It is worrying and alarming as to the how the judiciary is interpreting “Physical contact with sexual intent”.
What a wrong precedent can do will not be seen until you look at the larger picture and providing an excuse to the like-minded.
It all comes down to the patriarchy in the society which tends to keep bringing regression in the society. It is often has been majorly seen in India that people have denied acknowledging a rape too. Either it is politicians, police, or the men of our society and now the judiciary.
What is the use of such laws when the court rejects the existence of such crimes?
Women in India are in constant fear of being sexually attacked by a person and in order to make them feel safe and to limit such attacks on women, this is certainly not helpful.
- Criminal Appeal NO. 161 OF 2020
- Section 7 of POCSO Act, 2012
- Criminal Jail Appeal No. 11/2015
- Criminal Appeal .No.496 of 2015