PROSTITUTION AND SEXUAL EXPLOITATION

The Penal Code punishes conduct related to prostitution and sexual exploitation. However, it should be noted that the mere fact of engaging in prostitution does not constitute a crime and that the behaviors constituting a crime consist of taking advantage of or favoring the prostitution of others.

On the one hand, Article 187 of the Penal Code punishes the person who, using violence, intimidation or deception, or abusing a situation of superiority or the victim’s need or vulnerability, determines a person of legal age to engage or remain in prostitution, a conduct punishable by 2 to 5 years of imprisonment and a fine of 12 to 24 months.

On the other hand, anyone who profits by exploiting the prostitution of another person, even with his or her consent, is punished with a prison sentence of 2 to 4 years and a fine of 12 to 24 months. In any case, exploitation exists when any of the following circumstances concur:

1. The victim is in a situation of personal or economic vulnerability.
2. Disproportionate or abusive conditions are imposed on the victim for the exercise of prostitution.

Aggravated modalities

The penalties previously indicated must be applied in their upper half when any of the following circumstances are present:

1. The perpetrator takes advantage of his status as an authority or public official. In this case, the penalty of absolute disqualification from 6 to 12 years shall also be imposed.
2. The perpetrator belongs to a criminal organization or group engaged in these activities.
3. The guilty party has endangered the life or health of the victim, either intentionally or through gross negligence.

Prostitution and sexual exploitation of minors

Article 189 of the Penal Code punishes any person who induces, promotes, favors or facilitates prostitution or otherwise exploits or profits from the prostitution of a minor or a person with a disability. This conduct is punishable by imprisonment of 2 to 5 years and a fine of 12 to 24 months.

This crime is punishable with a higher penalty in the following cases:

188. If the victim is under 16 years of age, the penalty to be imposed is imprisonment of 4 to 8 years and a fine of 12 to 24 months (art. 188.1 of the Penal Code).

1. If violence or intimidation is used in the commission of the crime, in addition to the fine, a prison sentence of 5 to 10 years is imposed if the victim is under 16 years of age, and a prison sentence of 4 to 6 years in other cases.

1. The facts are punished with the corresponding higher penalty if the victim is in a situation of special vulnerability, if the perpetrator takes advantage of a situation of cohabitation, superiority or kinship with the victim, if the perpetrator takes advantage of his status as an authority or official, if the victim’s life or health is endangered, if the facts are committed by the joint action of two or more persons or if the perpetrator belongs to an organization dedicated to carrying out this type of criminal activities.

Article 188.4 of the Penal Code punishes, with a lesser penalty, the solicitation, acceptance or obtaining, in exchange for remuneration or promise, of a sexual relationship with a minor or a person with a disability. Thus, the behavior of clients is criminalized and they are sentenced to 1 to 4 years of imprisonment (or 2 to 6 years of imprisonment if the minor is under 16 years of age).

Corruption of minors

Article 189 of the Penal Code punishes two types of conduct with a prison sentence of 1 to 5 years:

1. On the one hand, the recruitment or use of minors or persons with disabilities for exhibitionist or pornographic purposes or shows, to produce pornographic material, as well as the financing or enrichment derived from such activities.
2. The production, sale, distribution, exhibition, offering or facilitation of the above mentioned child pornography or in the elaboration of which persons with disabilities have been used. The possession of this type of material for the above-mentioned purposes is also punishable, even if the material originates abroad or is unknown.

In order to specify the scope of application of this crime, the Penal Code itself regulates the concept of child pornography or pornography in the production of which persons with disabilities have been used, a concept that includes the following materials:

1. Those that visually depict a minor or a person with a disability engaging in real or simulated sexually explicit conduct.
2. Any depiction of the sexual organs of a minor or person with a disability for sexual purposes.
3. Any material that visually depicts a person appearing to be a minor engaged in actual or simulated sexually explicit conduct, or any depiction of the sexual organs of a person appearing to be a minor, for primarily sexual purposes, unless the person appearing to be a minor is actually 18 years of age or older at the time the images were obtained.
4. Realistic images of a minor engaging in sexually explicit conduct or realistic images of a minor’s sexual organs, primarily for sexual purposes.

Aggravated modalities

Article 189.2 of the Penal Code punishes with a prison sentence of 5 to 9 years those persons who capture or use minors or persons with disabilities for exhibitionist or pornographic purposes or shows or to produce pornographic material, when minors under 16 years of age or in a situation of vulnerability are used, when the facts are especially degrading, if physical or sexual violence is used to obtain the pornographic material, if the life or health of the victim is endangered, if the pornographic material is of notorious importance, if the person responsible is a relative of the victim….

Other criminal conduct

Art. 189.4 and 5 of the Penal Code punishes, with lower penalties, conducts related to the corruption of minors carried out by end users:

1. Attending exhibitionist or pornographic shows involving minors or persons with disabilities, with a penalty of 6 months to 2 years imprisonment.
2. The acquisition or possession for one’s own use of child pornography or in the production of which persons with disabilities have been used, as well as the access to this type of pornographic material through information technologies, is punishable with 3 months to 1 year of imprisonment or with a fine of 6 months to 2 years.

Likewise, art. 189.6 of the Penal Code punishes those persons who, having under their custody, guardianship, care or foster care a minor or person with disabilities, and knowing their state of prostitution or corruption, do not do what is possible to prevent their continuation in such state or do not go to the competent authority to do so. In this case, the penalty is imprisonment of 3 to 6 months or a fine of 6 to 12 months and, in addition, the Public Prosecutor’s Office will promote the relevant actions to deprive the perpetrator of parental authority, guardianship, custody or foster care.

On the other hand, art. 189 bis of the Penal Code punishes the distribution or public dissemination through any information technology of contents intended to promote, encourage or incite the commission of crimes related to prostitution, sexual exploitation, corruption of minors, exhibitionism and sexual provocation with a fine of 6 to 12 months or imprisonment of 1 to 3 years.

Criminal liability of legal persons

Finally, since 2021, Art. 189 ter of the Criminal Code provides for the possibility that legal persons may be criminally liable for the offenses included in this Chapter, in which case the penalties to be imposed will be as follows:

1. A fine of three to five times the profit obtained, if the crime committed by the natural person is punishable by imprisonment for more than 5 years.
2. A fine of two to four times the profit obtained, if the crime committed by the natural person is punishable by a prison sentence of more than 2 years not included in the preceding paragraph.
3. In all other cases, the fine is double to triple the amount of the profit obtained.

Dissolution, with the possibility of other penalties, such as suspension of activities, closure of premises, prohibition to carry out certain activities in the future, disqualification from obtaining public subsidies and aid, and judicial intervention.