Sexual Assault and Sexual Harassment

In one line

Sexual assault is contact without penetration, aggravated sexual assault is the same on the section 9 list, and sexual harassment needs no contact at all.

In exam wording: sections 7 to 12 of the Protection of Children from Sexual Offences Act, 2012 define and punish sexual assault, aggravated sexual assault and sexual harassment, of which sexual intent is the common ingredient.

Why the law has this at all

Section 3 caught penetration. A great deal of what is done to children is not penetration, and the law had to reach it without either overreaching or leaving gaps.

Overreach was a real danger. A definition of "touching a child" would criminalise a doctor, a nurse, a parent bathing a child, a teacher lifting a fallen student. So the Act does not define the offence by the act alone. Every one of the four offences in this chapter requires sexual intent, and the Explanation to section 11 makes that a question of fact, to be decided on the evidence in each case.

Gaps were the other danger. A definition confined to touching would miss the man who makes a child touch him, and the definition of touching four named parts of the body would miss everything else. So section 7 has a residuary limb: any other act with sexual intent which involves physical contact without penetration.

And section 11 goes further and drops contact altogether. Six clauses cover words and sounds, exhibiting the body, showing pornographic objects, stalking, threatening to use a real or fabricated depiction, and enticing a child for pornographic purposes. That last group is why section 12 punishes conduct that leaves no physical trace at all.

Some words this chapter uses

Sexual intent is not defined; the Explanation to section 11 says any question involving it is a question of fact.

Gang sexual assault is defined by the Explanation to section 9(g), in the same terms as section 5(g).

Position of trust or authority in section 9(p) again reaches conduct in an institution or home of the child or anywhere else.

Sections 7 and 8: sexual assault

Section 7, the definition. Whoever, with sexual intent:

• touches the vagina, penis, anus or breast of the child; or
• makes the child touch the vagina, penis, anus or breast 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.

Section 8, punishment. Imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and fine.