Guest Post: "Skin to Skin" — Situating Justice for Victims of Child Sexual Abuse

(This is a guest post by Shruti Avinash)

Title – ‘Skin to skin’. Subtitle – Situating justice for victims of child sexual abuse.

The POCSO Act in itself is one of the most stringent laws functioning in India at this time. The norms of prosecution under this Act are very different from that prescribed in the Indian Penal Code (IPC), and the final outcome of the case is usually secure. The law has been lauded on paper, but has been dubious in its implementation due to those loose ends created by the interpretative discretion exercised by our courts.

The recent judgments of the Bombay High Court’s Nagpur Bench, handing out three consecutive acquittals of accused under the POCSO Act on objectionable grounds is an eye-opener on the realities of the rights of an Indian child. In this Article, we examine the judgments in question, attempt to determine the nature of deficiency in the present interpretation of the law, and analyse whether the (recently amended) law is serving its purpose.

At the very heart of every single one of these verdicts lies a single, very evident narrative of indifference. The rationale of the High Court Judge, in making these verdicts does not see child sexual abuse as any different from non-consensual sexual contact with an adult, and resultantly does not account for the deep psychological trauma experienced by any such child victim. The interpretations made by the Courts, on several occasions, sadly, have not been in line with the intention of the legislation, or the purpose that those specific provisions may have been meant to serve.

That ‘skin to skin’ contact is necessary to constitute sexual assault.

The Bombay High Court here, decided to categorically exclude a certain class of sexual contact from within the ambit of Section 7 of the POCSO Act. The Court held that:

‘The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’’

What the court has essentially done here, is argue on behalf of the accused on grounds of technicalities. It has failed to account for the trauma experienced by the victim on being subjected to unwanted sexual contact at the age of 12 and has instead, taken a much more idealist view of justice, by anchoring its argument on the suitability of variables such as the ‘stringent nature of punishment provided for the offence’ and by asking for ‘stricter proof and serious allegations’.

That the act of holding a minor girl's hands and opening the zip of pants will not come under the definition of "sexual assault" under the POCSO Act

The case in question here is one of a precarious nature, as it involves a five-year-old girl child being invited to the bed for ‘sleeping’ by the accused, who with his pant zip open was fondling himself explicitly. This act was interrupted by the mother of the victim, and the sessions court held the accused liable for aggravated sexual assault under Section 9 of the POCSO Act. Ironically, the Bombay High Court while applying the principle of Ejusdem generis pronounced that the offences in question do not fall under the definition of ‘aggravated sexual assault’ and would be more suited under Section 354 of the IPC.

The Court, unfortunately failed to make any considerations for where or how this offence might have culminated if the accused person had gotten the opportunity to bring it to its logical end. It did not contemplate on whether in the case of a five-year-old child being victimised it had a duty to hold the accused responsible for his acts under the POCSO Act independent of its own regressive interpretations.

For some reason, the Court has repeatedly hinted toward the proportionality aspect of the sentence, without addressing the anguish felt by the victim:

"Considering the nature of the offence and the sentence prescribed, the aforesaid acts are not sufficient for fixing criminal Liability."

Here, the Court has decided the viability of the sentence, not by the offence or the act of the accused, but by a disagreeable form of reverse engineering of the penalty. It decided of its own volition by some abstract calculation that the prescribed sentence under Section 9 of the POCSO Act was in too great a quantum to warrant the fixing of liability. This utterly reprehensible approach may be good for bargaining for the purchase groceries, but is wholly inappropriate for the purposes of meeting the ends of justice when the affected life in question is as fragile and young as five years old.

While the former verdict has been stayed by the Supreme Court on grounds of its dangerous precedential value, the Court has failed to address the general trajectory that the prosecution and trial under the POCSO Act has been taking. The very purpose of the POCSO Act has been to ensure a greater level of deterrence and a higher standard of prosecution in the event of sexual crime against children. The acts of the Bombay High Court in qualifying certain provisions and definitions so as to benefit the accused defeats the very purpose of this legislation. The effect of such a (commutative) switch in the penal statute for prosecution is wholly disadvantageous to the victim, such that the accused may even escape scot-free. This includes the prejudicial shifting of the burden of proof, the lessening of sentence, and the lax approach to prosecution under the IPC as opposed to prosecution under the POCSO Act.

At the outset, it appears that the pandemic has resulted in the permanent abrogation of the quality of the justice system, with the idea of child rights taking a backseat. It has largely remained outside of public knowledge that there had been a huge fall in active prosecution under the POCSO Act post the lockdown being implemented. This essentially means that, there was an inadvertent suspension of all trials and prosecutorial activities under the POCSO Act, and verdicts granting bail made in favour of the accused, which in times of normalcy would have been met with great disfavour.

In such circumstances the evidentiary value of the victim’s statements may not meet the ‘sterling quality’ as demanded by the courts, and such high thresholds resultantly benefit the accused. The interruption of procedures for child counselling, evidence collection, medical examination, and the recording of the statements, even for a brief period of time during the national lockdown was permanently detrimental to the victims of all those cases of child sexual abuse that arose during the given period of time. The delay until the case is brought to trial is understood as having considerably dampened the willingness of the courts to hold the accused responsible for their actions.

Sex-education as a rider, social settings as a catalyst

The recent judgment of the Himachal Pradesh High Court granting bail to a 24-year-old ‘boy’ charged with having sexual intercourse with a 16-year-old minor girl on the grounds that she was ‘bold enough to declare her love for the accused’ is appalling. The full-grown man was let off on bail despite having sexual intercourse with the minor girl, which the court justified by stating that:

"Undoubtedly, due to the lack of an appropriate curriculum on sex education in schools, people do not know what is legally prohibited."

Unfortunately, the court has brought up sex education as though it would be a tool to help predators and sex-offenders groom their victims combined with requisite knowledge of the law so as to escape culpability. What is more abhorring is that the court has refused to contemplate the existence of a power dynamic and stated that the social setting acts as a ‘catalyst’ for a ‘girl to fall in love with a more senior boy’.

The question of legal propriety, the age of minority and the legitimacy of consent given to a person over eight years elder to the minor are questions the court did not delve into. It is now pertinent to ask the court with what qualifiers it is admissible for a child to profess ‘love’ for a much older adult man and consent to sexual intercourse without the consent having been vitiated by a skewed power dynamic.

The plausible exceptions to incapacity of consent

Numerous courts across the country, and most notably the Madras High Court have reiterated the presence of consensual relations among adolescents and frivolous registration of FIRs under the POCSO Act by the parents of the minor girls. The Madras High Court has gone so far as to recommend that consensual sex be allowed after 16 years of age. This would be a question of law that merits some deliberation and examination by a body of legal experts and those specializing in child rights. The claim that there is a possibility of a consensual sexual relationship between a 16–18-year-old and an 18–20-year-old is not completely unfounded. On the other hand, the courts making this same exception for the sexual interaction between a 16-year-old and a 25-year-old is arbitrary and not in the interest of children. A judicial doctrine to determine the legal tenability of free consent given by an adolescent minor to another adolescent (minor or not) is the need of the hour to rid the Statute of this grey area.

The intent of the Legislation

The Ministry for Women and Child development had in September 2013, in its overview of the POCSO Act 2012 stated the following:

‘The said Act recognises almost every known form of sexual abuse against children as punishable offences, and makes the different agencies of the State, such as the police, judiciary and child protection machinery, collaborators in securing justice for a sexually abused child."

This premise that the Act recognises almost every known form of sexual abuse against children is prima facie sufficient to contend that the legislation did not intend to discriminate between ‘skin to skin contact’ and the absence of it. Despite there being a provision which by a welfare-oriented interpretation may have safeguarded the interest of the child, the mode of interpretation adopted by the court is not even remotely acceptable as being in the interest of children.

What is most unsettling in these decisions of the Bombay High Court is the tender age of the victims, which should ideally have ruled out any apprehensions of the court in proceeding on a presumption of guilt of the accused. If the victim were substantially deep into adulthood, then the court may have been marginally justified in demanding a coherent deposition that ‘inspires the confidence’ of the court. However, in cases where the age of the victim is as young as 12, the Court owes a duty to the victim to proceed on her statement, on circumstantial evidence, and to give the benefit of the doubt (in the event that there is any) to the victim and not to the accused. It appears as though the courts sympathise with the plight of the accused on incurring such heavy liability and thereafter proceed to adjudicate the issue as though they seek to rescue the accused from unjust prosecution under this law.

The pattern of considering the near-adulthood of the victim while acquitting the accused is a common phenomenon across Indian courts, which is nothing but a slippery slope. The attempt to exclude victims on the threshold of adulthood is some kind of deliberate and unnecessary deviation from the intention of the legislation.

This is disheartening on the ground that the development of children across the social spectrum in India varies largely, bringing more suffering to some class of children than others. In other words, a 17-year-old girl in the heart of urban India may approximate an adult in her behaviour more than a 17-year-old underprivileged/malnourished girl child in rural India, with both being unfortunate victims of the arbitrary and indifferent whims and fancies of the courts.

Admissible Statements and the expectations from the child

The Courts, on that account have been extremely indifferent to the limitations of the child victims in recounting their experiences and testifying in statements, as they repeatedly acquit those accused of these heinous crimes. In December 2020, the Bombay High Court acquitted a man accused of raping a 7-year-old girl child with the argumentation that the statements of the child were ‘inconsistent’, and the court was unable to proceed on the testimony of the child alone. In this very case, the special POCSO court had previously convicted the accused based on the statement of the child.

When appeals are made to the verdicts of the special POCSO courts, the outcome of the case is then in the hands of other courts of appeal and High Courts thereof. Notably, it is conjectured that this is deleterious for the rights of a child victim, as High Courts are rarely sensitised and specialised enough to provide justice to the victim without prejudicing his/her rights in some manner. It is very improbable that a special POCSO court would acquit the accused with the reasons that the Bombay, Madras and Himachal Pradesh High Courts have placed on record. One among several issues here being that the High Courts assume that children are coherent, informed and are capable of recollecting and describing the incidents that took place in their paradigm just as an adult would. Evidently, the adjudication of child sexual abuse cases outside of the jurisdiction of POCSO courts appears injurious to the object of this law.

Conclusion

The High Court verdicts in their observations have taken a detour in favour of the accused for reasons which we cannot easily isolate, yet are grave enough to merit condemnation and examination. We cannot sweep the rationale behind such verdicts under the carpet even if we manage to do so with the verdict itself. For this reason, it is the imperative of the legal fraternity and civil society to be intolerant of all and any forms of child sexual assault whether with ‘skin to skin’ contact or otherwise.

In conclusion, the POCSO Act will remain yet another ineffective welfare legislation unless it is implemented keeping in mind the essence of its purpose. The purpose of the POCSO Act is to be more stringent toward and less accommodative of (suspected if not convicted) pedophiles than the IPC. The shifting of burdens and the standard of prosecution is at the outset intended to be relatively less forgiving of any forms of child sexual abuse or sexual assaults of minors. It is not sufficient that the State legislates a stringent statute for the protection of children. The State must also ensure that these children are not harmed by the apparatus envisaged in this law meant for their protection. For the purposes of providing justice to children, one must empathise with the plight of innocent children having their childhood tarnished and taken away from them. The lack of this aforementioned empathy has resulted in the regrettable and erroneous acquittals and bails that we have had to witness.