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The Indian Penal Code states that

physical contact and advances involving unwelcome and explicit sexual overtures

is guilty of sexual harassment. Pikewise, POCSO act sections 7 and 11 state

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.

A person is said to commit sexual harassment upon a child when such person with sexual intent,-- (i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child;

How is sexual intent proven or disproven in the 2 cases? In the latter case the burden of proving a lack of intent is on the accused, while in the former case I think it's not. Nevertheless, the two provisions are similar due to "sexual intent" being used. How is this proven and disproven?

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Sexual intent is proven (or disproven) like any other form of intent. A confession is not necessary, although that is one available method. It may be inferred with proof from circumstantial evidence.

Any combination of direct and circumstantial evidence is allowed. There isn't a formula for it. The prosecution or defendant, as the case may be, simply has to convince the trier of fact that there was or was not sexual intent. Any otherwise admissible evidence that could rationally show that sexual intent is more or less likely can be presented.

If it happens in a gynecological appointment, or because the defendant slipped on a banana peel after the defendant's glasses were splattered with mud so he couldn't see what he was doing, this is going to be exceedingly hard to prove in the absence of a pattern and practice in multiple cases that couldn't be a coincidence, or with something like bragging to a friend in private.

If this happens at a festival celebration, or after a dinner date, or intent is corroborated by perverted photographs on the defendant's phone, or is accompanied by sexual language, any other intent is going to be highly implausible and circumstantial evidence will strongly point to a sexual intent.

One way to disprove sexual intent is for the defendant to testify that there was some other intent. There is risk in that approach. You can't simultaneously testify that sexual contact never happened and that sexual contact did happen but without sexual intent, for example. Testifying that there was sexual contact without intent basically admits some other element of the crime. But it also forces the prosecution to prove that the defendant is lying, which depending upon the evidence, may be easy, or may be hard.

In real life, most of the cases that get prosecuted are easy cases. But, there will always be cases that are closer and circumstances that one wouldn't easily foresee in advance, and that is why we have courts and trials.

Ultimately, the prosecution presents evidence and the finder of fact has to decide if it proved that element of its case.

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  • in the second case I mentioned. the act states that the burden of proof of proving sexual intent is on the accused. in that case how is it disproven ? can sexual interest strongly indicate sexual Intent as well (for example , the act deals with CSA so could someone with a diagnosable pedophilia be even more suspect in this scenario ?)
    – user49663
    Feb 16, 2023 at 0:12
  • Is the former case sexual harassment and the latter case sexual assault? You have three examples. In any case, regardless of the burden of proof, the way it is proven is the same: any combination of direct and circumstantial evidence is allowed. There isn't a formula for it. The prosecution or defendant, as the case may be, simply has to convince the trier of fact that there was or was not sexual intent. Any otherwise admissible evidence that could rationally show that sexual intent is more or less likely can be presented.
    – ohwilleke
    Feb 16, 2023 at 0:18
  • usually in these cases there are rules of evidence i.e Indian evidence act or the Evidence rules in POCDO act itself or judicial precedents on rules of evidence. can the Prosecution or accused provide evidence that doesn't meet the criteria and can it still be accepted ?
    – user49663
    Feb 16, 2023 at 1:49
  • @IndianLawApplicant The vast majority of the evidence wouldn't be contrary to the rules of evidence.
    – ohwilleke
    Feb 16, 2023 at 2:07
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    A medical professional examining a woman or child might touch her without sexual intent. Anyone else... You would have a very unusual situation where the touching itself doesn't prove "sexual intent" beyond reasonable doubt.
    – gnasher729
    Feb 16, 2023 at 10:05

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