SEXUAL ASSAULTS ON MINORS UNDER 16 YEARS OF AGE

Sexual assaults on minors under the age of 16 are regulated in articles 181 to 183 bis of the Penal Code. Article 181.1 of the Penal Code punishes the performance of acts of a sexual nature with a minor under 16 years of age, with a prison sentence of 2 to 6 years, considering as such both the acts performed by the minor with a third party and the acts performed on himself at the request of the perpetrator. However, if the perpetrator has not used violence or intimidation and none of the aggravating circumstances detailed below are present, the judge may impose the lower penalty in degree, taking into account the minor nature of the act and the circumstances in which the criminal act was committed.

Aggravated modalities

First, if the perpetrator’s conduct constitutes one of the types of sexual assault described above, the penalty to be imposed is imprisonment for a term of 5 to 10 years.

Secondly, if the facts constitute rape, that is, when the sexual act consists of carnal access through the vagina, anus or mouth, or the introduction of bodily members or objects through the vagina or anus, the penalty is imprisonment for 6 to 12 years, or even 10 to 15 years if the act constitutes a crime of sexual assault.

Likewise, the penalty is imposed in its upper half, when any of the following circumstances concur:

1. The acts are committed by the joint action of two or more persons.
2. Sexual assault is preceded or accompanied by extremely serious violence or particularly degrading acts.
3. The victim is in a situation of special vulnerability or is under 4 years of age.
4. The victim is or has been a partner of the perpetrator.
5. In order to commit the crime, the perpetrator takes advantage of a situation of cohabitation or superiority or kinship with the victim.
6. The perpetrator uses weapons or other dangerous means capable of causing death or serious injury.
7. In order to commit the crime, the perpetrator has overridden the victim’s will by supplying him/her with drugs, medicines or any other substance.
8. The offense is committed within a criminal organization or group engaged in such activities.

Finally, if the perpetrator takes advantage of his status as an authority or public official to commit the crime, in addition to the prison sentence, the penalty of absolute disqualification of 6 to 12 years shall be imposed.

Other conduct constituting a crime

Apart from the criminal conduct described above, art. 182 of the Penal Code punishes, with a lesser penalty, making a minor under 16 years of age witness acts of a sexual nature, for sexual purposes, even if the perpetrator does not participate in such acts, in which case the penalty is imprisonment from 6 months to 2 years. In addition, if the acts witnessed constitute a crime against sexual freedom, the penalty is imprisonment from 1 to 3 years.

Likewise, Article 183 of the Penal Code punishes certain conducts carried out through the Internet or using information technologies:

1. On the one hand, it punishes the person who, through any information technology, contacts a minor under 16 years of age and proposes to meet him/her with the aim of committing a crime of sexual assault or a crime of corruption of minors, provided that such proposal is accompanied by acts aimed at approaching him/her. In this case, the applicable penalty is 1 to 3 years of imprisonment or a fine of 12 to 24 months, penalties that will be imposed in the upper half if the approach is achieved using coercion, intimidation or deception.
2. On the other hand, it punishes the person who, through any other information technology, contacts a minor under 16 years of age and performs acts aimed at deceiving him/her to provide him/her with pornographic material where a minor appears. In this case, the penalty to be imposed is imprisonment from 6 months to 2 years.

Exemption from criminal liability for consent of the minor

Finally, it is especially relevant to bear in mind that the free consent of a minor under 16 years of age excludes criminal liability for the crimes described above, provided that the perpetrator is a person close to the minor in age and degree of development or physical and psychological maturity (art. 183 bis of the Penal Code).