Sexual Assault is About Consent, Skin or No Skin: Bombay HC Faces Backlash After Ruling on 'Groping'

Ahona Sengupta
·3-min read

The International Planned Parenthood Federation (South Asia) reacted to the recent Bombay High Court's "Skin-to-skin contact" ruling with grave concern on Monday. The IPPF said that the judgment is "deeply flawed" in its understanding of child sexual abuse and "fails to take into account the power hierarchy when an adult person abuses his/her authority over a child/minor".

The Nagpur bench of Bombay High Court has observed in a particular case that groping a child's breast without "skin-to-skin" contact is not the offence of "sexual assault" under India's child protection law - the Protection of Children from Sexual Offences Act.

"We are concerned about the judgement of the Indian court and believe it fails to take into account that child sexual abuse occurs when a person uses his/her power over a child or youth," the IPPF said in its statement.

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"IPPF works with survivors of violence and would like to remic that abuse is a criminal offence not because of "skin-to-skin" of physical contact but because it violates consent. A narrow interpretation of what constitutes sexual assault would harm years of work done by child rights and women's right groups in India," it added.

Further the IPPF stated that "any attempt to dilute the statutory regime of POCSO would be hugely detrimental to the child rights and a narrow interpretation of what constitutes sexual assault would harm years of work done by child right’s and women’s rights groups in the country," hoping that "egregious decision" would be overturned by the higher courts by keeping the rights of the children at the centre of any discourse on child sexual abuse.

The IPPF South Asia Regional Office (SARO) is one of the six regional networks of the International Planned Parenthood Federation.

Meanwhile, the apex child rights body in the country, the National Commission for Protection of Child Rights, asked the Maharashtra government on Monday to file an urgent appeal against a recent Bombay High Court judgment that said an act cannot be termed as sexual assault if there is no "skin-to-skin" contact.

In a letter to the Maharashtra chief secretary, National Commission for Protection of Child Rights (NCPCR) Chairperson Priyank Kanoongo said the words "skin-to-skin with sexual intention without penetration" in the judgment also need to be reviewed and the state should take note of this as it seems to be derogatory to the minor victim in the case.

In the January 19 judgment, the Bombay High Court said groping a minor's breast without "skin-to-skin contact" cannot be termed sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act. Justice Pushpa Ganediwala of the Nagpur bench held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault. It has drawn the ire of child rights bodies and activists across the country.

The NCPCR chief said it seems that the identity of the victim has been disclosed and the commission is of the view that the state should take note of this and initiate necessary steps. "Therefore, in view of the above and considering the seriousness of the issue, the commission being the monitoring body under section 44 of the POCSO Act, 2012 requests you to take necessary steps in the matter and file an urgent appeal against the aforesaid impugned judgment of the Hon'ble High Court.

"You are requested to provide details of the minor victim (maintaining strict confidentiality) so that the commission can provide help such as legal aid etc. in the best interest of the child," Kanoongo said.