Guide to Finding Legal Counsel in Sexual Assault Cases

Following the reform of sexual offenses, the well known “Solo Sí es Sí” (Only Yes is Yes) Law was passed.Only Yes is Yes“, operated within the framework of a comprehensive gender law(LO 10/2022, of September 6), some of the crimes linked to sexual freedom, as is the case of “abuse” have been reformed. However, the most relevant change, according to the Preamble of the Law, consists in “eliminating the distinction between sexual aggression and sexual abuse, being considered sexual aggression all those conducts that attempt against the sexual freedom without the consent of the other person.“. To this end, a new criminal offense has been created: Article 178 of the Penal Code (hereinafter, PC), which has been assigned the name of sexual assaultand which merges the conduct of sexual aggression and sexual abuse.

1. The crime of sexual assault

The crime of sexual assault is regulated in the Title of crimes “against sexual freedom” of the Penal Code, being committed by any person who performs any act that infringes on the sexual freedom of another person without his consent, being understood that there will only be consent when it has been freely manifested through acts that, in view of the circumstances of the case, clearly express the will of the person.

This block of offenses is composed of three articles, which are described below:

• Article 178 PC regulates the basic type of sexual assault and contains an attenuated type in its third paragraph “in consideration of the minor nature of the act and the personal circumstances of the offender“, and an aggravated type in its second paragraph when violence or intimidation is involved.

• Article 179 PC establishes an aggravated type when the sexual aggression consists of carnal access by vaginal, anal or oral means, or introduction of bodily members or objects by any of the first two means. In addition, it contemplates a higher penalty for those cases in which violence or intimidation is used. In this case we are dealing with the crime of rape.

• Article 180 PC contemplates aggravating circumstances of the two previous precepts, such as the commission of the crime by the joint action of two or more persons, what is colloquially known as “pack” operations or “group” assaults, the use of drugs or drugs to override the will of the victim, the exercise of extreme violence or aggravating circumstances due to kinship with the victim.

As we can see, all of the conducts described in the offenses involve a direct attack on the victim’s sexual freedom, which is why they are highly repugnant to society and carry heavy prison sentences.

2. What to do if you are a victim of sexual assault?

If you believe you have been the victim of a sexual assault, despite the delicacy of the situation and the agony it may cause you, the first thing to do is to remain calm. Next, the best thing to do is to seek legal advice from a team of expert criminal lawyers, such as those who make up the firm NIETO ENRIQUEZ ABOGADOS PENALISTAS, so that they can advise you properly, channeling your case in the best possible way, and answer all the questions that may arise.

Once you have a criminal lawyer, the next step would be to go to the police authorities to file a police report. to file a police report.. In addition, a complaint is a statement, verbal or written, by which you communicate to the authorities any fact that you have knowledge of and that may constitute a criminal offense, even if you have not witnessed it directly or has not caused you harm.

In order for you to be able to make such complaint in the best possible way, analyzing all the information and the necessary elements so that the complaint can be processed satisfactorily, it is advisable that you rely on a criminal law firm like ours, where we will advise you and help you find a way to explain what happened, accompanying you to file the complaint with the authorities, and even represent you throughout the procedure, always watching over your interests.

3. What should be done if the victim is someone else?

The truth is that it is becoming increasingly common that instead of identifying oneself as a victim of the crime, we identify another person close to us as such, for example, if we witness the facts or a family member or friend tells us that he or she has suffered a sexual assault. What can we do in these cases?

Any person may report criminal acts, even if he/she has not directly witnessed the aggression or has not been harmed by it, as long as it is a public offense. In the case at hand, sexual assaults are crimes classified as semi-public offenses.Therefore, in order to initiate criminal proceedings the victim’s complaint is required, although the Public Prosecutor’s Office may act on its own initiative.However, the Public Prosecutor’s Office may act ex officio when the victim is a minor or a person with a disability who needs protection.

The most advisable thing to do in these cases is to support the victim, to advise him to report the facts, since his report will be essential for the investigation of the facts, and to seek the legal advice of a criminal lawyer, since there are times when taking this step is very difficult for the victims, since many doubts arise regarding the criminal procedure, which an expert lawyer in the matter will be able to answer and thus help him to make the right decision.

What happens when the victim is under 16 years of age?

Sexual offenses involving minors under 16 years of age are specifically regulated in Article 181.1 PC, which punishes anyone who performs any act of a sexual nature with a minor under 16 years of age with a prison sentence of 2 to 6 years.

As in the case of the rest of sexual aggressions, if it has been carried out using violence, intimidation, abuse of a situation of superiority or vulnerability of the victim, as well as on persons who are deprived of sense or whose mental situation is abused and those that are carried out when the victim’s will is annulled for any reason, the prison sentence will be increased, ranging between 5 and 10 years.

In the same sense, our legislator considers that such conducts deserve a special further punishment in those cases in which sexual aggressions are carried out on minors under 16 years of age with carnal access by vaginal, anal or oral means, or introduction of bodily members or objects by either of the first two ways, providing that in these cases the penalty shall be 8 to 12 years of imprisonment, and, in the event that such carnal access is executed with violence, intimidation, abuse of superiority, vulnerability of the victim or that the victim is deprived of his or her senses or will, the penalty will be even higher, ranging from 12 to 15 years of imprisonment. In addition, all the above conducts may be aggravated by different circumstances, such as the victim being under 4 years of age, the existence of a relationship of cohabitation or kinship or a relationship of superiority, that has been executed by 2 or more persons or involving extreme violence.

Finally, special mention should be made of what is popularly known as the “child groomingThe crime of “cyberstalking” or cyberstalking of minors, a crime committed by those who contact by internet, telephone or any other technology with a minor under 16 years of age and propose a meeting to perform acts of a sexual nature. The inclusion of this crime in the Penal Code arose in 2010, in response to the widespread use of the Internet and information and communication technologies, which were often used for sexual purposes against minors, with a worrying increase in the number of minors who had received sexual requests on occasion. Being able to disguise one’s personality through false profiles on social networks and create a climate of trust with the minor from behind the screen makes it much easier for the offender to approach the minor-victim, and with this, the commission of the crime, making it necessary to criminally punish these behaviors developed by an adult through such means to gain the trust of minors in order to arrange meetings to obtain sexual concessions.

However, for this conduct to be punishable, the proposal must be accompanied by material acts aimed at rapprochement.

Thus, in article 183 PC punishes anyone who contacts a minor under 16 years of age through any telematic means and proposes to arrange a meeting with the aim of committing the offenses of Article 181 PC (explained above), provided that the proposal is accompanied by material acts aimed at approaching the minor. Likewise, the penalty would be imposed in its upper half if the approach of the minor is achieved by deception, coercion or intimidation. Finally, conduct aimed at obtaining pornographic material from the minor is also punishable. pornographic material by telematic means or when such images are shown to the minor.

5. What if the aggressor is a family member or intimate partner?

Sexual assaults or rapes suffered by intimate partners have unfortunately become an increasingly common phenomenon in our society, so much so that our legislator has been forced to provide in the Penal Code a specific case for this type of cases. In fact, article 181.1.4ª CP states that “When the victim is or has been a wife or a woman who is or has been linked by an analogous relationship of affectivity, even without cohabitation“the prison sentence will be increased, this sentimental relationship operating as an aggravating circumstance of the facts.

In this type of situation we find a breach of trust. abuse of trustIn this type of situation, there is a prior relationship of trust between the aggressor and the victim of the crime, which the aggressor makes use of to commit the crime more easily, since the victim’s standards of protection are minimal, since it is completely unexpected that such acts come from a family member.

This is where the mixed circumstance of kinship the mixed circumstance of kinshipThis is a circumstance that modifies the responsibility for eseen in article 23 PC and that has been present throughout our legislative history, and can have mitigating or aggravating effects, depending on the type of crime, i.e., the fact that the perpetrator of a crime is related to the offended party is a fact that can aggravate or mitigate the penalty, depending on the crime.

In the case of crimes against sexual freedom, this circumstance would act as an aggravating circumstance. aggravating circumstanceThe penalty would be increased. As the Supreme Court rightly states, this “is a consequence of the existence of certain moral duties that the family coexistence of relatives determines and precisely for this reason the attacks or aggressions within the circle of persons included in article 23 of the Penal Code socially deserve a greater reproach of the wrongful act“. (STS 370/2003, of March 15, Rec. 521/2002).

6. What is required to report sexual abuse?

Once the victim has decided to report the facts, the most relevant thing to do is to collect all possible evidence, i.e., evidence of the crime.i.e. evidence of the crime. In this way, there will be a much better chance that the case will be successful. However, as recently announced by the Supreme Court, the testimony of the victim is sufficient evidence, the testimony of the victim is sufficient evidence and it would not be necessary to provide further evidence, it is advisable to gather all those evidences that can prove what happened, for example:

• The clothes he was wearing at the time of the crime.
• The medical report of the physical examination performed after the assault.
• Other evidence linked to the aggressor, for example, the condom in case he used it or conversations held with him.
• Witnesses to the facts.
• Vestiges.

In addition, you should keep in mind that such evidence may be requested by the Police or Judicial Authorities, so it is always recommended that it is prudently stored and collected in advance. As we see, sexual assaults are complex and extremely difficult to manage, both at a legal and personal level, so if you are in a situation where you need legal advice in relation to crimes against sexual freedom and require the assistance of a criminal lawyer, in NIETO ENRIQUEZ ABOGADOS PENALISTAS we have a team of criminal lawyers specialized in sexual assaults ready to look after your interests and assist you in everything you require.