Recent judgment on groping: Are POSCO laws bare ? - Talismanian

Recent judgment on groping: Are POSCO laws bare ?

Predators have no iota of fright; as the reprimands remain enormously diminutive for child sexual abuse…

The alarming statistics of the National Crime Records Bureau in India records that ‘a child is sexually abused every 15 minutes.’ 37% of the Indian population constitute children under the age of 18 and are predominantly entities of illiteracy, malnutrition, deprivation of health care. More than 53% of children have reported being prey’s of ‘child fondle private parts, making a child exhibit private part, nude photographs, etc.. 20% remain to be causalities of severe verbal and sexual abuse, neglect, maltreatment and thus it is evident that child protection in India remains either dysfunctional or mute.

The recent judgment from the Bombay High Court in her judicial capacity and lawful interpretation (though not moral) is admittedly an absurd interpretation of the ambiguous POSCO Act which held that ‘groping a minor’s breast without skin-to-skin contact cannot amount to sexual assault’ that shook the nation was overturned by the Supreme Court of India. Undeniably the Bombay High Court set a dangerous and detestable precedent but it can also be an outrageous interpretation of the ‘independent judiciary’s’ independence at the Constitutional level being ripped…with the subsequent withdrawal of her permanency in the judgeship. The State must rather enact and enforce legislation to effectively prohibit, prevent, protect and respond to all forms of violence against children.

In 1999, World Health Organization Consultation on Child Abuse Prevention(62) stated “Child sexual abuse is the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society. Child sexual abuse is evidenced by this activity between a child and an adult or another child who by age or development is in a relationship of responsibility, trust, or power, the activity being intended to gratify or satisfy the needs of the other person. This may include but is not limited to: — the inducement or coercion of a child to engage in any unlawful sexual activity: — the exploitative use of a child in prostitution or other unlawful sexual practices; — the exploitative use of children in pornographic performance and materials.”

The Sexual Offences Act 2003 in the United Kingdom has a clear definition of sexual assault, ‘A person (A) commits an offense if:
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) (B) does not consent to the touching, and
(d) (A) does not reasonably believe that (B) consents. It further defines touching very specifically in Section 79(8) a:
(a) touching with any part of the body,
(b) with anything else,
(c)through anything, and in particular, includes touching amounting to penetration.

The Sexual Offences Act (2009) in Scotland Section 20 illustrates ‘physical contact’ as
(a) (A) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus, or mouth of B (child),
(b) intentionally or recklessly touches (B) sexually,
(c) engages in any other form of sexual activity in which (A), intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with (B),
(d) intentionally or recklessly ejaculates semen onto (B),
(e) intentionally or recklessly emits urine or saliva onto B sexually."

The Child Abuse and Neglect Reporting act of California (USA) defines sexual assault as ‘intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes
of sexual arousal or gratification.’

The Child Protection System in Saudi Arabia defines ‘sexual abuse’ as ‘the child’s exposure to any kind of sexual assault, abuse or exploitation.’

Bare laws like POCSO let sexual predators escape, India is ranked as the most dangerous country in the world for the high risk of sexual violence in 2018 and as 109 children are being sexually abused every day, to eradicate these tragic spells, there is a pressing need for implementation of strict and clear laws with definitions, illustrations, and explanations in order to further avoid encounters with dangerous precedents being set.

Crimes of sexual assault against children in every shape and form are gruesome and increasing day by day igniting fear in every mother and father and the society at large. Whereas the laws (including the special laws) that are meant to protect infants and our lineage generate no iota of fright as the reprimands remain enormously diminutive…

In the words of the late Legend Justice V.R.Krishna Iyer, ‘the glory of our Constitution desires mutual reverence between the Legislature and the Judiciary in such a manner that comity and camaraderie become the majestic modus vivendi ‘ thus calling for the Lawmakers to enact stringent legal provisions to address distinct forms of violence, sexual abuse, exploitation, harmful traditional practice against children and for the Judiciary to tackle such violence in specific settings including in schools, care homes, and justice institutions. The abovementioned statistics are limited to the reported cases, there are multitudes that remain mute and there is also a pressing need to establish accessible, safe, confidential, and child-friendly reporting complaints mechanism for child victims to report child sexual abuse to handle this grave life-long scar.

The article is co-authored by…

Ms. Maffi
                                  Ms. Maffi

Ms.Maffi, Advocate, she holds a degree in law from London, a Legum Magister in Legal Practice from the City University, UK, and a Legum Magister from United Nations Interregional Crime and Justice Research Institute, Italy.

Ms.Carolina Maria Scarrone
    Ms.Carolina Maria Scarrone

Ms.Carolina Maria Scarrone,  law student at the University of Turin, Italy, and a columnist in Italian newsdailies.

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