Understanding Touch under the POCSO Act

By | September 6, 2021
Understanding Touch under the POCSO Act

This article on ‘Understanding touch under the POCSO Act’ is written by Akriti Raina and attempts to understand the concept of touch under the POCSO Act, the effectiveness of teaching good and bad touch to young children, sexual grooming of child victims and suggests some alternative measures.

I. Introduction

With the rise in the number of cases of sexual exploitation against children, one cannot help but question the legal framework. However, the answer lies in the analysis of our understanding of the concepts of ‘’good’’ and ‘’bad’’, the general awareness in society regarding consent and its importance and inhibition of the society in imparting sexual education to children.

II. Defining touch

The act of touching is almost always present in sexual offences of any kind. Thus, it is important to understand the meaning of touch. Touch is defined as the act of bringing a body part into contact with something so as to perceive it through our senses. [1]

Thus, with reference to sexual offences, touch can be defined as the act of violating the personal space of a person, by bringing a body part in contact with the person, without their consent or by force/threat etc.

But are all touches to be avoided? No, the importance of a healthy touch has been highlighted now and then by medical sciences. A health touch is necessary for the psychological and emotional well-being of human beings.[2]

What law prohibits is non-consensual and uninformed touch, specifically violating a person’s sexual liberty and their right over their own body. Such a touch impacts the emotional and psychological development of an individual in form of life-long trauma.

III. Touch under POCSO Act

The Protection of Children from Sexual Offences (POCSO) Act, 2012 is a law that provides protection to children against sexual offences. A child under the POCSO Act is one who is below the age of 18 years.

The POCSO Act is in line with the constitutional values enshrined under the Fundamental Rights and Directive Principles of the State Policy. It aims at ensuring the safe and healthy development of children without exploitation of their minds and bodies.

The act defines various types of sexual offences against children and prescribes the appropriate punishment for the offenders. However, the POCSO Act does not define the meaning of the word touch.

Section 7 of the POCSO Act states –

whoever with sexual intent touches the private parts of the child or makes the child touch the private part of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.[3]

In a recent judgement by a judge of the Nagpur Bench of the Bombay High Court, Justice Pushpa Ganediwala opined that “touch” under POCSO refers only to skin-to-skin touch and the act of groping a minor without contacting the skin would not constitute an offence under the POCSO Act. Even though the judgement has been condemned it shifts our focus on the ambiguities surrounding the definition of touch.[4]

Such judgements remind us why the interest of justice demands a clear-cut understanding of what would constitute as “touching” under the Act. Thus, whether the reception of the touch by the skin of the victim is a narrative of their predicament or a violation of their bodily integrity by means of unwelcomed touch over their clothed bodies is sufficient to constitute an offence under the Act, needs to be reflected upon.

IV. Concept of good and bad touch

The concepts of good and bad touch are nowadays taught to children from a very young age. The awareness regarding the importance of teaching children about what is an appropriate or inappropriate touch has been gaining recognition.

Good touch can be defined as the touch that is appropriate and likewise bad touch is the unwanted and unwelcome touch. Some examples of good touch are hugs from parents, grandparents, siblings, handshakes from peers, relatives, teachers etc. On the other hand, bad touch may come in form of touch from strangers or inappropriate touching by a relative etc.

While we teach our children these differences, we fail to inculcate an important value in their minds: the value of their consent. By teaching what is good or bad, what we give them is another categorization of which areas of their bodies are sacred and have to remain so and any unwanted touch will scar the sanctity they are supposed to maintain.

This leads to the creation of stigma especially in minds of young girls for whom their bodies become a matter of pride, that they have to uphold for their families. Instead of teaching what is a good part to accept touch on or which parts of the body are considered bad for touching, what we can teach is the idea of autonomy one has over their body. Instilling in their minds the importance of consent is important and non-negotiable as when they understand the importance of asking and permitting, they become aware of the authority they hold over their bodies.

V. Sexual abuse and grooming

One of the ignored aspects of sexual assault of minors is the practice of grooming. Grooming is the process of psychological manipulation of the victim. It is used by offenders to make sure that the victim does not expose them. It comes in form of reinforcement for the cooperation of the victim or threats of punishment for non-cooperation or emotional manipulation and abuse.

Grooming is a major reason for the silence of the victims for years. These young victims being trapped in such situations find it difficult to communicate with peers or family members. Many a time abuse comes at the hands of persons known to the victims like relatives or cousins etc. and in such events, the victim often silences themselves for the fear of being termed as liars or displeasing the offender.

POCSO Act does not take into its consideration the problem of grooming. A law is ineffective unless and until those it seeks to protect can reach its doors. In the case of a male child the general perception that their dignity is not stored in their reproductive organs, makes them more vulnerable to being disbelieved. Meanwhile, the voices of their female counterparts are silenced as their sexual organs are a matter of life and death for the “dignity” of the family, their own being already robbed by the offender.

By teaching protection through the concepts of good and bad touch, we unintentionally focus too much on the bodies and not the mental aspects of violation of one’s permission. If the body is a sacred temple, the mind is its power source. While the body heals, it is the mind that is scarred for life. In a society like ours where mental health is seen as insignificant, traumatic experiences in childhood are sufficient to hamper the healthy development of the victim.

In a judgement of Bombay High Court, ruled while granting bail to an accused, the judge observed that touching the cheeks of a minor without sexual intent is not sexual assault. Thus, what the law ignores is the fact that section 7 of the POCSO Act, is silent as to the problem of grooming. Grooming is not always accompanied by direct sexual advances by the offender, it is often a step-by-step process of manipulation leading up to the actual offence.[5]

VI. The way forward

Changes can only come from a transformation of our sexual education system. Developing a complaint committee inclusive of psychologists, counsellors and teachers that can look into the complaints from children in schools can be a starting point. When victims have access to such neutral and safe spaces, they get encouraged to speak of their ordeal. Replacing the concepts of good and bad with the concepts of safe and unsafe touch and prioritizing that the children are taught the value of their consent.

When stigma surrounding their sexual organs will be replaced by the recognition of the autonomy that they hold over their bodies and their dignity will be viewed as more than a mere touch on their bodies, these children will become informed and aware of their rights from an early age.

While educating children is necessary, efforts have to be made to bring about a change in the mentality of the masses. This can be done through workshops, discussions at places like offices, News debates, colleges etc. Thus, removing the ambiguities surrounding the meaning of touch, acknowledging the problem of sexual grooming is necessary.

Legal reforms are plausible and their effective implementation is possible, only when there is a transformation of the perception regarding the rights of children, strengthening of the justice delivery system as well as inculcating the value of bodily autonomy in children.


References

[1] Touch-Literature Review, Available Here.

[2] “Gray Touch”: Professional Issues in the Uncertain Zone Between “Good Touch” and “Bad Touch” by Joseph L. Daly- Hamline University School of Law, Michael S. Maza, Colleen M. Daly in Marquette Elder’s Advisor, Volume 11, Issue 2 Spring, Available Here.

[3] India Code- POCSO Act,2012, Available Here.

[4] Available Here.

[5] Available Here.


  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Author: Akriti Raina

Akriti is a student at the Faculty of Law, Delhi University. Her areas of interest are labour law, industrial relations, ADR mechanisms and women rights.

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