The Bombay High Court's 'skin to skin' contact judgment: What constitutes physical contact?

What has been infamously christened the ‘skin to skin’ judgment of the Bombay High Court acquitted the accused for an alleged act defined under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The Court instead convicted the accused under Section 354 of the Indian Penal Code (IPC) and sentenced him to imprisonment for 1 year, while observing that “it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin touch with sexual intent without penetration.”

The allegations in this case were that the accused took the girl child (12 years) home with him on the pretext of giving her a guava, groped her, pressed her breast and attempted to remove her salwar. The judge clearly recorded in the judgment that the prosecution case has been established by the prosecution witnesses. The allegations made in FIR were established, but the same were not found sufficient to attract the offence u/s 7 of the Act for want of a ‘direct skin to skin touch’.

This judgment thus opens up an interesting debate as to what constitutes 'physical contact’ for the purpose of attracting an offence defined u/s 7 of the POCSO Act. Is ‘direct skin to skin touch’ is a sine qua non - an essential ingredient to complete the act of ‘physical contact’? Or is contact of the body of the victim by the perpetrator directly or indirectly, with or without clothes, enough?

Ingredients of sexual assault under POCSO Act

Section 7 of POCSO Act reads as under:-

“Whoever,

(i) 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

(ii) does any other act + with sexual intent +which involves physical contact + without penetration,

is said to commit sexual assault”.

It is clear from a bare language of the section that sexual abuse involving touch or physical contact short of penetration, would fall within the ambit of this section. To complete an offence of ‘sexual assault’ u/s 7, it needs to be established that the alleged act involves touch/physical contact with sexual intent. It goes without saying that bonafide ‘physical touch’ minus any ‘sexual intent’ would certainly not constitute an offence of ‘sexual assault’ u/s 7 of the Act.

It is necessary to delve into the purposive interpretation of the Section in the context of the purpose and objective of this special enactment brought in to protect children from sexual abuse of all kinds. On doing so, it is clear that it deals with two different set of acts/offences of sexual assault. The first part of the Section is completely independent from acts referred to in the second part of the Section. It deals with acts of touching particular body parts of the child or when the child is made to touch such body parts of the abuser or any other person, with sexual intent. The key factors of first part of s.7 are “touch” “with sexual intent” and “particular body parts.”

The expression ‘physical contact’ is used to define or qualify the acts referred to in the second half of the Section, which reads “whoever does any other act + with sexual intent + which involves physical contact + without penetration = is said to commit sexual assault.” These expressions, ‘touch' and 'physical contact’, combined with ‘sexual intent’, are not defined in the Act and thus this task is left for the courts to accomplish.

As regards ‘sexual intent’, Section 30 provides for a statutory presumption of existence of culpable mental state to commit such offence, which as per the explanation attached with to Section includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. This presumption again is subject to rebuttal by the accused, if any. Similarly, Section 29 provides for statutory presumption of commission or abetment or attempt to commit any offence under Sections 3, 5, 7 and 9 of the Act, subject again to rebuttal. Thus, the burden is on the accused to discharge these two statutory presumptions.

Relatively lesser sexual abuses are covered by Section 11 of the POCSO Act and are termed as ‘sexual harassment’, punishable for up to 3 years of imprisonment. The element of ‘touch and/ or physical contact’ does not exist in Section 11. The most heinous sexual abuses - ‘penetrative sexual assault’ and ‘aggravated penetrative sexual assault’ - are dealt with in Sections 3 and 4, and Sections 5 and 6, respectively. All sexual offences, which are graver than sexual harassment but short of penetrative sexual assault, where touch/physical contact of the body of the child with sexual intent is involved, are all covered in Section 7 and termed ‘sexual assault’, punishable under Section 8 of the Act.

S. 2 (i) provides that "sexual assault" has the same meaning as assigned to it in Section 7. It is clear that an element of ‘physical contact/ touch’ is essential to constitute an offence of ‘sexual assault’, which should simply mean coming in contact with the body of the child with or without clothes, in any manner or through anything. The concept that the skin of the abuser should have come in direct contact of skin of the subject/victim is nothing but an attempt to add words to the provision, and to defeat the very purpose of bringing in the enactment.

Rules of interpretation

The language of the Section is very clear, unambiguous and uncomplicated. The courts by their interpretation cannot add words into it or create confusion so to defeat the very purpose of the legislation. It is imperative for the courts to give a purposive interpretation to the provisions contained therein keeping in view the Directive Principles of State Policy embodied in Articles 39 and 15 of the Constitution, as held by the Supreme Court.

The rule of practical interpretation can be effectually applied to the provisions of a statute of the present kind. It must be understood that an interpretation which upon application of the provisions at the ground reality, would frustrate the very law, should not be accepted against the common sense view which will further such application, as held by Supreme Court in Southern Electricity Supply Co of Orissa Ltd v. Sri Seetaram Rice Mill.

In Eera v. State, while dealing with interpretations of a few sections of the POCSO Act, the Supreme Court has held that “while interpreting a social welfare or beneficent legislation, one has to be guided by the “colour”, “content” and the “context of statutes." It was further held,

"The Judge has to release himself from the chains of strict linguistic interpretation and pave the path that serves the soul of the legislative intention and in that event, he becomes a real creative constructionist Judge."

The interpretation of the Bombay High Court would cause absurdity and would also render meaningless clause (h) of Section 9 r/w Section 10, which provides that “whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance, shall be punished with imprisonment of either description for a term which shall not be less than 5 years but which may extend to 7 years."

If the interpretation of the High Court were to be accepted, several acts of sexual abuse would be left out of the ambit of the Act. For example, if the abuser wears gloves and disrobes the child completely with sexual intent and touches the naked body of the child or touches the child’s naked body through any other object, or if the abuser with his/her naked hands fondles the body of the child without removing the child’s clothes, all such acts would fall out of the ambit of the POCSO Act.

Section 354-A IPC also uses the expression “physical contact” and certainly the given microscopic interpretation of the expressions “touch/physical contact’ would do similar harm to the objective for which the amendment was brought in IPC.

The given interpretation cannot even be accepted by linguistic standards, as in common parlance, touch or physical contact is never understood as skin to skin contact. Such an interpretation also suffers from a basic fallacy of understanding the very concept of ‘sexual abuse’ of a child, which has nothing to do with direct contact of skin to skin between the abuser and the subject. To assume that a person’s or a child’s body with clothes over it cannot be sexually abused, is to be oblivious to the naked truth and amounts to trivializing a serious crime which has become a menace.

A combined reading of Section 7 and Section 79(8) of the UK Sexual Offences Act, 2003 throws some light on the subject. S. 7 defines sexual assault of a child under 13 years of age. It reads –

"A person (A) commits an offence of sexual assault if he intentionally touches a child (B), the touching is sexual and the child is under 13 years of age."

Clause 8 of the general interpretation Section 79 of the UK Sexual Offences Act 2003, defines ‘touching’ which includes touching (a) with any part of the body, (b) with anything else, or (c) through anything. Thus, if any person touches a child under 13 years of age with sexual intent, directly or through anything or with anything, then an offence of sexual assault is made out.

Thus, the requirement of ‘skin to skin direct touch’ cannot be read as an essential ingredient to constitute sexual assault by way of judicial interpretation or by adding words into the definition clause, more so when it defeats the very purpose of the legislative enactment. The expressions ‘touch’ and ‘physical contact’, must be given a purposive interpretation to further and not to frustrate the purpose of the Section and the Act itself. Any other myopic interpretation by way of judicial intervention would do harm to the legislative intent.

Shobha Gupta is a practicing Supreme Court lawyer.