Sexual Offences in Spain
In recent years there has been an increased presence in the media of sexual abuse and rape cases in Spain. Our lawyers have made this article to provide you with some general information about the law in Spain on sexual offences. If you would like more information on this matter please contact our experienced team of lawyers.
Under Article 178 of the Penal Code a person shall be guilty of a sexual assault when that person offends against the sexual freedom of another person, using violence or intimidation. When found guilty a person shall be punished for sexual assault with a sentence of imprisonment from one to five years.
Violence and intimidation correspond with each other as they both contain elements of coercion, injury and threats. It is clear that these elements are effective and sufficent to overcome the will of the victim. It is necessary that but for the violence and intimidation caused by the accused the victim´s will would not have been overcome. The victim´s actions must be involuntary. The intimidation does not necessarily have to be directed at the victim, it can be indirect. For example, the assaulter could threaten to hurt the victim´s family unless the victim complies.
A person shall be guilty under Article 179 of the Penal Code when the sexual assault consists of vaginal, anal or oral penetration, or inserting body parts or objects into either of the former two orifices. A person convicted of rape shall be given a sentence of imprisonment from six to twelve years.
Article 180 of the Penal Code sets out the special circumstances to a sexual offence which would increase a prison sentence. If a person commits an offence under Article 178 of the Penal Code and one of the following speical circumstances applies then that person shall be punished with a prison sentence of five to ten years. If a person commits an offence under Article 179 of the Penal Code and one of the following speical circumstances applies then that person shall be punished with a prison sentence of twelve to fifteen years.
The special circumstances are:
- When the violence or intimidation made are of a particularly degrading or humiliating nature;
- When the acts are committed by joint action of two or more persons;
- When the victim is especially vulnerable due to age, illness, handicap or circumstances, except for what is set forth in Article 183;
- When, in order to execute the offence, the offender has availed himself of a superiority or relationship, due to being the ascendant, descendent or brother or sister, biological or adopted or in-law of the victim;
- When the doer uses weapons or other equally dangerous means which may cause death or any of the injuries foreseen in Articles 149 and 150 of this Code, without prejudice to the relevant punishment for the death or injuries caused.
Should two or more of the above circumstances concur, the penalties foreseen in this Article shall be imposed in the upper half.
When the violence or intimidation made are of a particularly degrading or humiliating nature
This covers extremely unsettling situations such as if the victim was urinated or defaceted on. It also covers situations when the accused uses objects to restrain the victim such as duct tape to cover the victim´s mouth.
When the acts are committed by joint action of two or more persons
There is no requirement that every person involved partook in sexual abusing the victim. It is enough that they engaged in the violence or intimidation which caused the abuse to the victim. The opinion of the court is that the author and cooperator of the crime should not be punished equally. The cooperator will be punished for the basic sexual crime and the author with an aggravated form.
Bis in idem is a latin phrase which means “not twice for the same”. It is a legal rule which states that a person cannot be punished twice for the same crime. However the position of some courts are changing. There has been discussions relating to accomplices and how many rapes could be committed in a collective assault.
A victim may have a special vulnerability due to age, illness, disability or situation. However if the victim is under 13 a special type of article would apply. The foundation of vulnerability is the abscense of self-protection mechanisms for the victim. This special circumstance has been used in cases in relation to victims with moderate retardation.
The special vulnerability of age cannot be recognised under these circumstances if the disproportion of age between the aggressor and victim was taken into consideration to achieve the intimidation requirement of the basic type under Article 178 and 179.
Taking advantage of superiority or relationships
There must be a noticebale difference between the position of both pàrties. One of them must be inferior to the other and this inferiority significantly restricts their ability to deicde freely, and the other must deliberately take advantage of their position of superiority. This could be in relation to labor, family, financial situation, age or something else. The person who is taking advantage of the situation must be aware that the victim no longer has a free choice.
Use of weapons
For this special cirumstance to apply there must be danger to life or integrity. It is enough that the level of intimidation used is increased. An example of this is putting scissors or a knife on the neck of a victim to force them to have sexual intercourse. The weapons may be used to penetrate the vagina or anus and if this occurs the special circumstance occurs and the prison sentence of the accused would be greater.
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