What is the crime of sexual assault?
The crime of sexual assault punishes acts that infringe on the sexual freedom of the victim without their consent. In this type of crime, the protected legal right is the sexual freedom of persons, which is their free determination to consent or not to consent to physical contact of a sexual nature.
It is an intentional offence (as it cannot be committed through recklessness) and a mere activity offence (i.e. it does not require a concrete result but the performance of a conduct).
Basic offence of sexual assault
The basic offence of sexual assault is defined in Article 178.1 of the Penal Code. This article punishes with a prison sentence of 1 to 4 years anyone who carries out any act that infringes on the sexual freedom of another person without their consent. Consent will only be understood to exist when it has been freely expressed through acts that, in view of the circumstances of the case, clearly express the will of the person.
In other words, consent does not have to be expressed verbally, but it does have to be expressed in some way, taking into account the particularities of each case.
Aggravated sexual assault
Article 178.2 of the Penal Code punishes with prison sentences of 1 to 5 years those persons who carry out acts of sexual content using violence, intimidation or abuse of a situation of superiority or vulnerability of the victim, as well as those that are carried out on persons who are sensory deprived or whose mental situation is abused and those that are carried out when the victim's will is annulled for any reason.
When the terms violence or intimidation are described, they must relate to the act committed by the offender. The violence must be physical and sufficient to enable the offence to be committed. In relation to intimidation, it can be defined as the threat of word or deed towards the victim. Such intimidation must be sufficiently credible to perform a sexual act that the victim would otherwise have refused.
Violation
Article 179 of the Penal Code defines rape as another of the aggravated types of the crime of sexual assault. Rape occurs when the sexual aggression consists of carnal access by vaginal, anal or oral means or the introduction of bodily members or objects by one of the first two means.
In this aggravated type, the penalties differ depending on whether there is the concurrence of violence and/or intimidation or not.
The aggressor, as established in article 179.1 of the Penal Code, will be punished with prison sentences of 4 to 12 years if there is no violence and/or intimidation. The second paragraph of the same legal precept, on the other hand, punishes with prison sentences of 6 to 12 years when there is violence and/or intimidation.
Aggravating circumstances specific to the offence of sexual assault
Article 180 of the Penal Code contains a whole set of specific circumstances that aggravate the penalties provided for in Articles 178.1 (from 1-4 years to 2-8 years of imprisonment), 178.3 (from 1-5 years to 5-10 years of imprisonment), 179.1 (from 4-12 years to 7-15 years of imprisonment) and 179.2 (from 6-12 years to 12-15 years of imprisonment) of the Penal Code.
These circumstances are:
- When the offence is committed by the joint action of 2 or more persons.
- When extremely serious violence is used or particularly degrading or humiliating acts are carried out.
- If the victim is particularly vulnerable.
- If the victim is or has been a wife or is a woman who has or has had an analogous relationship of affection with the aggressor.
- When the perpetrator has taken advantage of a situation or relationship of cohabitation or kinship, or of a relationship of superiority over the victim.
- When the perpetrator uses weapons or other equally dangerous means, which may cause death or any of the injuries provided for in Articles 149 and 150 of the Penal Code, without prejudice to the penalty that may be applicable for the death or injuries caused.
- If the victim's will has been overridden with a substance suitable for this purpose.
As established in the second paragraph of this legal precept, when two or more of the aforementioned circumstances concur, the penalties respectively mentioned shall be imposed in the upper half of the sentence.
Likewise, when the guilty party has taken advantage of his or her status as an authority, agent or public official, the penalty of absolute disqualification of 6 to 12 years shall also be imposed.
Attenuated form of the offence of sexual assault
Article 178.4 of the Penal Code punishes the attenuated form of the crime of sexual assault: in those cases in which there is no violence or intimidation, nor is the victim's will overridden, nor are there other aggravating circumstances of Article 180 of the Penal Code, the sentence of imprisonment of the basic type in its lower half or a fine of 18 to 24 months may be imposed.
In order to be able to proceed to the application of the attenuated type, the minor nature of the act and the personal circumstances of the offender shall be taken into account.
What are the changes brought about by the “only yes is yes” law?”
These crimes have recently been reformed through Organic Law 10/2022, of 6 September, on the comprehensive guarantee of sexual freedom, popularly known as the Law of the only yes is yes.
The core element of this reform was to eliminate the previous concept of “sexual abuse” by equating any act of a sexual nature with the concept of “sexual assault”. Until then, the basic difference between the two crimes was that aggression required violence or intimidation and abuse did not. Now, through this modification, the essential issue to consider that we are dealing with a crime of sexual assault is the absence of the victim's consent.
As a result, as of October 2022, any attack on sexual freedom is considered sexual assault, whether or not violence or intimidation is involved.
Subsequently, in order to rectify a whole series of errors that were observed once Organic Law 10/2022 was approved, it was reformed by Organic Law 4/2023, of 27 April, which specifically establishes aggravating circumstances in the event that the conduct is carried out by means of violence and/or intimidation, thus not forgetting the elements that were present before the reform.
Have you been a victim of sexual assault?
If you have been the victim of a sexual assault, the first thing you should do is report it. Do not hesitate to contact a lawyer who will offer you the best legal advice to help you through the whole process.
Have you been charged with a sexual assault offence?
If you are accused of a crime of sexual assault, do not hesitate to contact a lawyer who will offer you the best legal advice to defend you. Do not hesitate and contact the criminal law firm Balaguer Bataller, in Barcelona, open 24 hours a day, 365 days a year.
