HC verdict on ‘skin-to-skin contact’ lacked sensitivity, AG tells top court

THE BOMBAY HC ORDER WILL HAVE A DEVASTATING EFFECT ON CASES BEFORE LOWER COURTS, THE AG INFORMED SC

NEW DELHI: A controversial verdict by the Bombay high court that required skin-to-skin contact between an accused and a child to establish sexual assault under the Pocso Act showed lack of sensitivity to the fact that children are the most vulnerable to sexual crimes because they are unable to defend themselves, attorney general (AG) KK Venugopal told the Supreme Court on Wednesday.

Venugopal, while making submissions on his petition challenging the January 19 Bombay high court decision, said: “The Protection of Children from Sexual Offences (Pocso) Act, 2012 is a special law to protect children against sexual offences as they are more vulnerable. The judge lacked the sensitivity to appreciate that Pocso Act is meant to prevent sexual offences against children who are unable to defend themselves.”

Stating that the judgment under challenge created an extraordinary situation leading to a wrong precedent, the top law officer said: “The judge has misinterpreted Section 7 of Pocso (dealing with sexual assault) by implying skin-to-skin contact as an essential ingredient to make out an offence. It will have a devastating effect on pending cases before subordinate courts.” Section 7 defines as sexual assault any physical contact “with sexual intent” on the “vagina, penis, anus or breast of the child” or making the child touch these body parts “without penetration”. The offence carries a minimum punishment of three years extending up to five years.

The high court had acquitted a man for groping a 12-year-old through while she was clothed, ruling that he be let off under the stringent Pocso Act because there was no “skin-to-skin” contact.