By Sayan Dasgupta
COVID-19 has been a fertile spawning field of sexual violence. Where some Courts have been deontological and acknowledging of this phenomenon, certain judgments act as a means of disenfranchisement of sexual violence victims. Bombay High Court in a recent judgment, in Satish v. State of Maharashtra has rendered an absurd interpretation of Protection of Children from Sexual Offences Act, 2012 [POCSO]. The accused was charged with Section 8 of POCSO read with Section 354 of Indian Penal Code along with Sections 342 and 363, for sexually assaulting a minor girl. The Bench acquitted the accused of sexual assault under POCSO while upholding conviction under the sexual assault charges under IPC on the rationale that there was lack of sexual intention on the part of accused to sexually assault the minor since there “was no direct physical contact, i.e., skin to skin” touch.
This verdict caused a huge uproar in the civil society and the legal fraternity alike causing the Supreme Court to stay the acquittal of the accused on the charge of Section 8 of POCSO. The judgment has rendered that mere groping would not amount to sexual assault under Section 7 of POCSO. Such an abhorrent interpretation prima facie trivializes not only sexual assault of female minors, but disproportionately excludes male minors from seeking justice.
The minor male victims of sexual abuse constitute a large majority in India. The Bench elucidated that mere groping over the clothes of the minor would not amount to sexual assault under Section 7 and 8 of POCSO. POCSO is inherently a gender-neutral legislation providing reprieve to minors of all genders. Section 7 provides that “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 words “penis, anus” annotate protection to the male victims from sexual assault. However, the case establishing the ‘skin-touch’ doctrine has significantly narrowed the scope of application of the provision.
Adoption of this exclusionary doctrine would impact both female and male victims adversely, however, where the female victim could resort to relevant provisions of IPC, the male victim is left remediless. The provisions of sexual crimes under IPC are highly gendered protecting only the woman or the girl child disenfranchising the male victims of sexual violence. Furthermore, the doctrine places the onus of proof on the prosecution per contra to POCSO. Section 29 of POCSO reverses the burden of proof and presumes the offence has been committed or abetted by the accused. If the view purported by the Bombay High Court is considered, and if the prosecution fails to satisfy the onus, the female victim can have a recourse to relevant provisions of IPC, whereas on the contrary, the male victim cannot.
The ‘skin-touch’ doctrine categorically contradicts the Model Guidelines issued by Ministry of Women and Child Development under Section 39 of POCSO which provides that “almost every known form of sexual abuse against children as punishable”. Furthermore, the Delhi High Court in Rakesh v. State without even delving into the detail of disrobing of the victim dismissed the appeal holding that mere groping of the private parts of the victim with sexual intent amounts to sexual assault under Section 7 of POCSO. Conflicting this accurate interpretation, the heavy onus placed on the victim results in narrow application. Whereupon the female victims have an alternative remedy, the abusers of the male victim are left scot-free on committing the atrocity leaving a permanent scar on the well-being of the child survivor. Ergo, mere groping would amount to sexual assault of the female victim under Section 354 of IPC but would not be sexual assault of male victim, either under POCSO or IPC. The provisions governing sexual crimes in IPC are gynocentric and neither the legislative or the judiciary have displayed any intention to take affirmative step on making the sexual offences gender neutral, despite there being categorical recommendation by the 172nd Law Commission Report and the Justice Verma Committee Report to make rape and other sexual offences gender neutral.
This inspires little to no confidence on the state functionaries with regard to gender justice. The ‘skin-touch’ doctrine creates a very real and alienating affect of male survivors wherein, groping over clothes would not amount to sexual assault. The lack of gender-neutral sexual offence laws and such interpretation is a clear dereliction of the male survivors.
