Judgment on Skin-to-Skin Contact and the Degree of Sin: What Is the Role of Mental Health Professionals?

To the Editor,

Arecent judgment delivered at the Bombay High Court ruled that groping a minor in the absence of skin-to-skin contact did not amount to sexual assault as per the Protection of Children from Sexual Offences (POCSO) Act. ¹ The honorable Supreme Court of India has stayed the judgment that could have otherwise had far-reaching ramifications. ² While the legal experts debate the merit of the judgment in terms of criminal jurisprudence, there are more important psychological health ramifications of this observation.

In India, childhood sexual abuse is significantly underreported, with surveys suggesting that every second child in India might have suffered abuse. ³ Despite the rise in child abuse and rape, the conviction rates under POCSO trial remains low at <30%. ⁴ The POCSO law in its letter and spirit acts as a deterrent for sexual predators. However, if this interpretation of the law became a precedent, one could imagine all future trials under the POCSO Act to have a line of questioning pricking on the minor aspects of the sexual offense, with a direct line of questioning asking for intimate details of the skin contact between the child and the accused. Such questions can lead to reticence and shock in traumatized children who may not have the cognitive maturity to appropriately comprehend and respond to the details. The defense can misconstrue this to throw doubt on the veracity of the complaint.

Furthermore, trauma itself could lead to difficulties in recalling the specific details of the incident, and repeated attempts at recall can lead to worsening traumatization and have a deleterious impact on the child’s psychological health. Any child in an ideal world should not be subjected to the traumatic ordeal of repeating every minor detail of the crime and to intense directive questioning of the degree of skin contact to deliver justice and, more importantly, punish and rehabilitate the sexual offender. Crime is a ubiquitous phenomenon across the world, albeit to varying degrees. Childhood abuse in any form is likely to have a devastating influence on the child’s development and future. Therefore, society’s collective responsibility is to prevent abuse in any form and protect the child’s safety. The POCSO Act has brought about a paradigm shift in the Indian legal system in deterring potential sexual offenders. A dilution of the law’s interpretation, in favor of sexual perpetrator, may defeat the greater purpose.

What Is the Role of Psychiatrists and Mental Health Professionals?

Mr Kofi Annan, UN’s former secretary-general, writes, “There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want, and that they can grow up in peace.” Psychiatrists play a vital role in this sacred duty to promote children’s safety and well-being. Psychiatrists play the dual role as agents of advocacy and professionals who help the child overcome trauma suffered from a sexual offense. The former is less highlighted and deserves more attention. There needs to be a more proactive role of mental health organizations in promoting awareness about the devastating impact of childhood trauma and promoting childhood safety. Mental health professionals, including psychiatrists, psychologists, and psychiatric social workers, should raise awareness among lawmakers and custodians of law about the effects of childhood trauma. This awareness in children can start with basic education about good touch, bad touch, and sole right over their body. Additionally, psychiatrists may serve in treating and rehabilitating sexual offenders during and after their incarceration, especially in the presence of psychopathy.

An Opinion

Similar to the requirement for psychiatrists to have specialized training to help children in distress, legislators, police personnel, and members of the judiciary also may need to be trained and sensitized about child and adolescent mental health. That may better enable them to perform the “sacred” duty of protecting the safety of the Indian child. Although the POCSO Act has provisions for training and sensitization, the effective implementation of the same in healthcare workers, judiciary, police, legislators, and the general public remains far below the minimum expectations. Mental health professionals are most suited to take up this responsibility in liaison with the administrative and judicial agencies.