Supreme Court stays Bombay High Court judgment which ruled skin-to-skin contact necessary for offence of ‘sexual assault’ under POCSO
The Supreme Court stayed the controversial judgment of the Bombay High Court which had held that pressing the breast of a 12-year old child without removing her top will not fall within the definition of ‘sexual assault’ under Section 7 the Protection of Children from Sexual Offences Act (POCSO).
The High Court had on January 19 ruled that pressing the breast of a 12-year old child without removing her clothes will only fall within the definition of outraging the modesty of woman under Section 354 of Indian Penal Code (IPC).
Whereas the punishment for sexual assault under Section 8 of the POCSO Act is imprisonment of 3-5 years, the punishment under Section 354 of IPC is imprisonment of 1-5 years.
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To deal with child sexual abuse cases, the Government has brought in a special law, namely, The Protection of Children from Sexual Offences (POCSO) Act, 2012.
Law provides for the protection of children from the offences of sexual assault, sexual harassment and pornography, including penetrative and non-penetrative assault.
The law safeguards the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts. The said Act defines a child as any person below eighteen years of age.
The said Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
The Act was amended and It increased the minimum punishment from seven years to ten years. It further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine.
The amendment adds two more grounds to the definition of aggravated penetrative sexual assault. These include: (i) assault resulting in death of child, and (ii) assault committed during a natural calamity, or in any similar situations of violence. Currently, the punishment for aggravated penetrative sexual assault is imprisonment between 10 years to life, and a fine. It also increases the minimum punishment from ten years to 20 years, and the maximum punishment to death penalty.
New rules as notified in March 2020 include provision of mandatory police verification of staff in schools and care homes, procedures to report sexual abuse material (pornography), imparting age-appropriate child rights education among others.
For crackdown on child pornography, the rules state that “any person who has received any pornographic material involving a child or any information regarding shall report the contents to the special juvenile police unit (SJPU) or police, or cyber crime portal.
Any institution housing children or coming in regular contact with children, including schools, creches, sports academies or any other facility for children must ensure a police verification and background check on periodic basis of every staff.