File Appeal Against Bombay HC’s Atrocious ‘Skin-to-Skin Contact Judgment’, Demands AIDWA

The All India Democratic Women’s Association (AIDWA) has released a statement denouncing the Bombay High Court’s judgement acquitting an accused of the charge of sexual assault of a minor girl under Section 7 of POCSO. It has also demanded the Government of Maharashtra to file an appeal against this “atrocious judgement”.

The Nagpur bench of the HC had ruled on January 19 that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault under the Protection of Children from Sexual Offences (POCSO) Act. In doing so, the HC overruled the three years’ sentence awarded to the accused by the trial court.

In the press statement released on January 27, AIDWA criticised the judge’s reasoning, referring to it as “deeply flawed”. Not only that, the judge failed to understand the serious nature of the act from the victim’s perspective. Even though the judge saw it as a minor crime for which punishment of three years was disproportionate, the victim was “clearly traumatised by this act of abuse and violence”, the women’s organisation stated.

Further, the January 19 judgment also attempts to undo the struggles of organisations like AIDWA, which has been campaigning for several years for a law which recognises the effect and seriousness of sexual assault for those who are subjected to it.

While there have been amendments in the laws, the patriarchal mindset of those applying the laws need to change as well, the statement added, as sexual violence is a grave act which violates the bodily integrity of women.

Citing the incident in which the 12-year-old girl was lured by the 39-year-old accused, who then groped the girl and also tried to “remove her salwar with the obvious intention of raping her” and left her locked her in the room when she began shouting, AIDWA stated that the accused was charged with kidnapping, wrongful confinement and molestation under Section 354 IPC, and non-penetrative sexual assault under Section 8 of POCSO only.

On the other hand, Section 7 of the Act describes non-penetrative sexual assault as whoever, with sexual intent, touches the vagina, penis, anus or breast of a child or makesthe child perform the same acts with the person involved or does any other act which involves physical contact with sexual intent without penetration commits sexual assault. However, AIDWA statement added, the judgement which overruled the sentence of the trial court, is faulty, as nowhere in the section it is specified that the touching with sexual intent has to be a “skin to skin contact” as Bombay HC ruled.

Since it is obvious that the crime committed by the accused falls squarely within the definition of sexual assault as defined in Section 7, the women’s organisation has demanded the Maharashtra government to recognise this at the earliest and file an appeal against the judgment.

The complete statement is given below.

ALL INDIA DEMOCRATIC WOMEN’S ASSOCIATION

2253-E, Shadi Khampur, New Ranjit Nagar, New Delhi – 110008

Phone: 011-25700476, 25709565 Email: [email protected] Website: aidwaonline.org

Press Statement Date: January 27, 2021

AIDWA Deplores Acquittal of POCSO Accused by Nagpur Bench of Mumbai HC

The All India Democratic Women’s Association (AIDWA) denounces the judgement of the Nagpur Bench of the Bombay High Court which has acquitted an accused of the charge of sexual assault of a 12 year old girl under Section 7 of POCSO by saying that since there was no skin to skin contact with sexual intent no case was made out. The high court overruled the sentence of 3 years given by the trial court.

The young child was lured by the 39 year old accused to his house on the pretext that he would give her a guava. She was then taken by the accused to a room on the first floor of his house and the accused started fondling her breasts and tried to remove her salwar obviously with the intention of raping her. When the girl started shouting, the accused covered her mouth with his hand and then left the room after locking the door from the outside. A neighbour heard the girl's shouts and informed the girl's mother who found her weeping in this locked room. Though an offence of attempt to rape was made out, the accused was not charged with this.

The accused was only charged with kidnapping, wrongful confinement and molestation under S354 IPC, and non-penetrativesexual assault under Section 8 of POSCO only. Section 7 of POCSO describes non-penetrative sexual assault and says that whoever, with sexual intent,touches the vagina, penis, anus or breast of a child or makesthe child perform the same acts with the person involved or does any other act which involves physical contact with sexual intent without penetration commits sexual assault. S8 of POSCO prescribes a punishment of 3 to 5 years and with fine. It is obvious even to lay person that the crime committed by the accused falls squarely within the definition of sexual assault as defined in Section 7. Nowhere does the section specify that the touching with sexual intent has to be a skin to skin contact. In any case the definition is wide enough to cover all other acts of touching with sexual intent.

The judge's reasoning is thus deeply flawed. The judge also fails to understand the serious nature of the act from the perspective of the victim of sexual assault. She seems to have seen it just as a minor crime for which a punishment of 3 years was very harsh and disproportionate. However the vulnerable child who was subjected to this act of abuse and violence was clearly traumatized by this experience.

AIDWA and others have struggled and campaignedfor several years for a law which recognises the effect and seriousness of sexual assault for those who are subjected to it. However though the law has been amended in many important aspects the patriarchal mindset of those applying the law also needs to change. Sexual assault is a grave act of violence and violates the bodily integrity of a women. AIDWA demands that the Government of Maharashtra file an appeal against this atrocious judgement.

Malini Bhattacharya - Adv Kirti Singh - Mariam Dhawale

President -  Legal Advisor - General Secretary