Primacy of intent

CEMENTING firmly the legal safeguards for children and women against sexual assault, the Supreme Court has overruled an impugned order of the Bombay High Court by which a man had escaped the charge of sexually abusing a 12-year-old girl because there was no skin-to-skin contact when he groped her (over her clothes). The SC 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.

The Protection of Children from Sexual Offences (POCSO) Act, enacted in 2012 to shield children from sexual abuse, clearly 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 SC observation that when two interpretations are possible, the one favourable to children must be preferred should help steer and accelerate things towards an unmistakably clear-cut and firm view of the situation. For, it is still a grey area. That ambiguities exist is apparent from not only the above case but also another one of the Bombay High Court that is slated for hearing by the apex court. Under consideration is whether the act of holding the hand of a minor girl and opening up the pants’ zipper constitutes sexual assault. The present case does shine some light on the likely verdict.

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