Sexual Harassment and Sexual Assault: Differentiating the terms

Sexual Harassment and Sexual Assault: Differentiating the terms

Sexual assult vs. Sexual Harassment

Sexual assault is a considerably narrower phrase than sexual harassment. Sexual harassment includes physical, verbal and emotional acts, while sexual assault is typically thought of as a bodily act. Oxford dictionary defines sexual harassment as “unacceptable physical contact, comments about sex, etc., usually happening at work, that a person finds annoying and offensive”.

International Law: US vs Indian Definition

Under the New York Penal Code section 130(3), sexual assault is termed as “sexual contact” as it includes touching of sexual or intimate parts to gratify one’s sexual desire. It includes touching the victim, touching the perpetrator, and touching the perpetrator by the victim, whether it be above or beneath garments. Lack of consent, consent by coercion, or inability to consent is a component of every sexual contact offence under Section 130.

The Indian Penal Code, 1860 (“IPC”) Section 354 discusses sexual assault as criminal force towards a woman with the intention to outrage her modesty, similarly Section 509 talks about the intention of insulting the modesty of a woman by word, gesture or act. However, the offence of sexual harassment was inserted in IPC by the Criminal Law (Amendment) Act 2013 through Section 354A stating that sexual harassment is the unwelcome physical contact and advances or demand or request for sexual favours or showing pornography or making sexually coloured remarks.

POSCO for Sexual Assault and Harassment

Indian criminal law recognizes the principle of “actus non facit reum, nisi mens sit rea” i.e., the act itself is not criminal, unless accompanied by a guilty mind. Mens rea is a state of mind which is punishable offence when any injury is caused. Therefore, for commission of an offence of assault it is necessary to prove the presence of intention.

The Protection of Children from Sexual Offences Act, 2012 (“POCSO”) Section 7 defines sexual assault as the touching of vagina, penis, anus or breast of the child or to makes the child touch such body parts of such person or any other person, it includes the physical contact without penetration. Punishment for sexual assault is 3 to 5 years with fine.

Whereas in Section 11 of POCSO sexual harassment is when a perpetrator sends or communicates any kind of sexually explicit material with the victim via message or another kind of communication, it is considered to be sexual harassment. Additionally, it involves offensive gestures. Sexual harassment is an offence that requires sexual intent and is not touch-based. Punishment for sexual harassment is upto 3 years and fine. From these definitions it can be concluded that sexual assault is committed when there is physical sexual abuse and sexual harassment do not involve physical act. Any sexual acts that take place with a child are seen as sexual abuse since children are unable to give their consent to sexual activity.

In the recent judgment of 2021, the Bombay High Court acquitted a man stating that, “groping a minor’s breast without ‘skin to skin contact’ can’t be termed as sexual assault under POCSO”. Supreme Court of India quashed the Bombay High Court judgment while questioning the interpretation of touch during the hearings and noted that the most important ingredient for constituting the offence of sexual assault is sexual intent and not skin-to-skin contact with the child.

Ingredients of Section 7: Sexual Assault in POSCO
[Student Researcher & Reporter Aastha Chawla]

Section 7 of the POCSO Act defines Sexual Assault, it covers a wide range of offences against children and can be broadly divided into two limbs. Sexual assault, under the first limb, is defined as the touching by a person – with sexual intent – of four specific body parts (vagina, penis, anus or breast) of a child, or making a child touch any of those body parts of “such person” (i.e. a clear reference to the offender) or of “any other person” (i.e. other than the child, or the offender).

In the second limb, sexual assault is the doing of “any other act with sexual intent which involves physical contact without penetration”. From this, it can be understood that the most important ingredient for constituting an offence under POCSO is “sexual intent”.

To understand this, the Bombay Sessions Court convicted a man for 1.5 years for calling a minor girl an “item” and pulling her hair, as from the use of the term in the circumstances it was said in, the sexual intent of the accused could be seen. Recently, the Gujrat High Court quashed a POCSO case against school officials accused of slapping a student, threatening to leak video of her adjusting skirt because the court observed that though the accused acted harshly, there was no ‘sexual intention’ on their part.