Woman 'Manipulating' Minor Boy Into Penetrating Her Is Sexual Assault Under Section 3 POCSO Act: Karnataka High Court

The Karnataka High Court has said that a woman who manipulates or induces a child (minor boy) to penetrate her, is a circumstance that falls squarely within the ambit of penetrative sexual assault under Section 3 of POCSO Act. 

The court clarified that this circumstance is covered by the phrase “make the child to do so with her or any other person” would be covered under Section 3. The court passed the order while refusing to quash a POCSO FIR against a 52-year-old woman accused of sexually assaulting a minor boy.

She was booked under Sections  4 (Punishment for penetrative sexual assault) and 6 (Punishment for aggravated penetrative sexual assault). 

For context, Section 3 states that "a person" is said to commit penetrative sexual assault if (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person.

Further if (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person, would also be covered under section 3. 

The petitioner's counsel argued that victim boy of 14 years and the petitioner being 48 years at the time, cannot become the subject matter of the provisions of the Act. It was argued that though Section 3 starts with a person, the definition further indicates to his male organs. If Sections 4 and 6 revolve round on the word 'he', a woman cannot become an accused under the Act.

Woman manipulating minor boy into penetration covered by S. 3

Justice M Nagaprasanna referred to Section 3 and observed that the provision opens with the words 'a person' – a term that is "gender neutral by design". 

"Clause (a) specifies 'he penetrates his penis', but significantly, it immediately expands the scope to include instances where the accused 'makes the child to do so with him or any other person'. The import of this clause is not confined to physical act alone, but extends to any person who induces, coerces or facilitates such an act regardless of their gender". 

Perusing Section 3 the court said that the explainable purport is that the act could be by a woman upon a boy, as explained in the four clauses. It said:

"When the allegations in the complaint, the statements recorded and the summary of the charge sheet are examined through the lens of statutory ingredients, it becomes clear that the boy in question may not have performed the act of penetration on his own volition. The allegation is that the act, woman manipulated or induced the child to penetrate her, this is a circumstance that falls squarely within the ambit of the words in the statute “make the child to do so with her or any other person”. Therefore, this court is of the firm and reasoned opinion that all statutory ingredients of offence under Section 3 stand fulfilled in the present case"

It said that to suggest otherwise would be adopting a reading of the law that is not only narrow and technical but also "antiethitical to its remedial purpose".

"The Act is designed not to serve anatomical formality but to protect the child from sexual abuse. This intent of the legislature cannot be subverted through strained and restrictive interpretations," the court emphasized. 

It thus found that the ingredients of offence were clearly made out in the present case.

Even boys, men are victims of sexual assault

The bench also referred to a research paper on male victims of sexual assault produced by the Department of Counselor Education and Family Studies, of Texas Tech University noting that it is indicative of barriers in reporting male sexual abuse. 

It then said, “In the light of the preceding analysis, as also the report/research articles quoted hereinabove, would clearly indicate that even boys and men are victims of sexual assault at the hands of either the person of the same gender or of the opposite gender. Therefore, on all the praedictus analysis, the ingredients of Sections 4 and 6 of the Act are completely met in the case at hand.”

To say woman is passive in sexual intercourse is 'archaic'

Rejecting the submissions of the petitioner's counsel that in a sexual intercourse the male is ever an active agent and the woman forever is a passive recipient as "archaic" it said:

“Such a view, steeped in antiquated stereotypes finds no foothold in the present day and is therefore, noted only to be rejected, as the law acknowledges applicability to both man and woman.”

Shock is psychological, would not control body's biological actions

Further, it rejected the argument of the accused that in a state of shock there would be no erection, and if there is no erection, there can be no penetration.

“State of shock is a psychological concept. Erection is purely a physiological or a biological concept. Psychological concepts would not sometimes control physiological and biological actions,” the court added.

Placing reliance on an Article published by Texas University, on male victims of sexual assault: phenomenology, psychology and physiology the court said that the same indicated that the human mind and body do not "obey rigid binaries of psychological impact controlling physiological results".

"Physiological coercion wielding its force may compel the body to respond even under the shadow of fear. The report further indicates that the reality is that human physiology explains the involuntary aspects of both erection and ejaculation,” the court said. 

Dismissing the petition the court said “The case stands cloaked in disputed questions of fact, where the offences alleged strike at the core of penetrative and aggrevated penetrative sexual assault, such proceedings cannot be erased with a mere stroke of pen. The trial, in such cases, is not a perfunctory ritual, but imperative necessity. It is for the petitioner to come out clean in its full blown form.”