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Against Sexual Freedom

Real life case

My husband is being prosecuted for sexual abuse and exhibitionism. He is innocent, it is all made up. The case has been stalled for a long time; it is in the Escorial courts. We don’t know what is going on, although our lawyer tells us that everything is fine but we are worried because we do not know anything regarding the case. We have not presented any evidence to the trial and we do not know if the other party has said a word.

A friend of ours has spoken greatly of you and knowing that you are specialized with these type of subjects, we would like to hire you. Please call us because we are very worried, when we meet we will give you more details regarding the case.

Regulation: Chapter 2, title 8

The essential piece of information of these type of crimes is the absence of violence or intimidation. Also there is no consent of the victim and if there was, it would be marred.

Classes

1.- Basic Type

The one without violence or intimidation and without consent commits acts that attempt against the sexual freedom or indemnity of another person.

Sentence: Prison from 1 to 3 years or fine of 18-24 months.

There is no carnal access or penetration. The action consists of contact with victim’s body with a lustful purpose without the victim being aware of this, like in the case where a doctor abuses the victim’s body during an examination.

2.- Sexual Abuses against minors or private persons with mental or sensor disorders

To the effects of the above, sexual abuse without consent will be considered the ones applies to minors of 13 or less years old, persons who are unconscious or with mental disorders that can be taken advantage of.

Prison time of 1 to 3 years or a fine of 18 to 24 months

Even if there is consent from the victim, the Penal Code states that the victim has no capacity to give this consent in the subject of sexual abuse on minors.

This article distinguishes 3 assumptions:

  • Minor of 13 years old or less: Minors have no capacity to understand the consent they are giving. There is a void in the law when the author of the crime thinks that the victim is of age, but this must be proved.
  • Person stripped of its senses: It must be understood that this person must be in a situation of unconsciousness; this can be by the effects of alcohol, passed out, etc. The author of the crime must be aware of this situation and knowingly take advantage of this to execute its lustful actions.
  • Person with mental disorders: It is necessary that the author of the crime knows the victim’s state and takes advantage of this to commit the crime.

3. Sexual Abuse by taking unfair advantage

This happens when the consent is obtained when the author of the future crime relies in a situation of superiority manifested with the reduction of the victim’s liberties.

Sentence: Prison time from 1 to 3 years or a fine of 18 to 24 months.

For this crime to be perfected it is necessary that the author finds himself in a situation of advantage in detriment of the victim and using this to satisfy his needs.

This situation of superiority affects the victim’s sexual liberty so that it alters the victim’s consent to commit sexual acts. It is necessary in every case that the author takes advantage of the situation knowing its advantage over the victim. This advantage must present itself in a clear and sufficient way over the victim. If the sexual relationship manifests after the author loses its advantage over the victim, then there will be no crime.

4. Aggravated Assumptions

2 types:

  • a) Art. 180. 1 3rd: It is about the situations in which the victim is especially vulnerable, because of age or sickness, or when the victim is less than 13 years of age.
  • b) Art. 180. 1 4th: It is about the situations in which a relation of advantage or kinship in a descendant, ascendant, blood brother, or adoption in relation to the victim is needed in order for the crime to exist.

In any of these two cases if we also look for sexual abuse in a carnal way via the vagina, the anus, the mouth or by introducing foreign objects to the body, the sentence will be from 7 to 10 years of prison.

5. Sexual Abuse with Deceit

It happens when in a deceitful way the author of the crime sexually abuses a person between 13 and 16 years of age.

Sentence: Prison from 1 to 3 years or a fine of 18 to 24 months

For this crime to happen deceit is necessary. Deceit must be understood as any fraudulent way that alters the will of the victim in a way that it gives its consent for a sexual relationship.

The assumptions that are punished are those that do not consist of carnal access , introducing objects, or oral and anal penetration.

Sexual Aggressions

Regulation: Chapter 1, Title 8, 2nd Book of the Penal Code

These crimes are characterized because violence or intimidation are present which separates them with sexual abuse crime. They are known for the existence of a lascivious action, because in the author’s conduct sexual desire is present, and also because the action is done against the will or consent of the victim.

Classes

1. Basic Type:

Of certain cases that attempt against sexual freedom of another person, with violence or intimidation

Sentence: Prison from 1 to 4 years.

The legally protected right is sexual freedom, and also different aspects related with dignity, health of the victim, and freedom in itself.

Authors of the crime: It can be anyone, this applies with the victim as well. The author has to be a living person, because these actions do not apply with corpses because they do not have sexual freedom.

Typified Action: It consists with the attempt against somebody else’s sexual freedom, with violence or intimidation. To commit this crime the following elements must concur:

  • Objective elements: They consist of the conduct of sexual character committed on another person’s body without its consent.
  • Subjective Elements: They are characterized by a lustful objective that the author pursues throughout the case.

Crimes against sexual liberty may be committed by commission of omission if a guarantor exists that has the duty to stop the crime.

The sexual aggression must be done with violence or intimidation. This is necessary apart from a relation of casualty between violence and intimidation and the subject’s conduct.

Violence is employed by force to break the victim’s will, using several procedures to achieve this.

In practice 2 there are two ways:

  • Vis absoluta: When the victim is grasped, and cannot move or free itself.
  • Vis relativa: When the victim is hit and threatened to stay still or will receive more pain.

One may ask if it is necessary if in a situation of sexual aggression resistance from the victim must exist. The answer is no, but an attitude that opposes the aggressor is definitely needed. The TS does not demand this resistance because you cannot ask the victim for a heroic effort.

On a first notion the mere declaration of the victim is enough to condemn the author of the crime. Intimidation is used to inflict or cause pain, this is known as psychological vis and it consists of communicating evil thru words, gestures or other procedures with awakening fear in the victim a necessary element, and in consequence the author committing a sexual aggression.

It is a crime with intention but it is discussed that there must also be a lustful motive. But this is assumed in practice.

Causes of justification: Consent excludes penal responsibility, but it must be valid and not altered.

Consummation: When these actions are committed on the victim’s body.

2. Rape

This happens when the sexual aggression consists of carnal access via the vagina, anus or foreign object introduction to either access.

Sentence: Prison from 6 to 12 years.

This article was reformed in 1999 and now contemplates the introduction of foreign objects via the vagina or anus.

Author: There is a difference:

  • If there is carnal access and oral or anal penetration, in principle it can only be a man.
  • If there is introduction of foreign objects via the vagina or anus, it can be either man or woman.

Victim: Woman in every case and man in the cases of introduction of foreign objects via the anus or mouth.

Typical Action: It is also distinguished according to the assumptions but in every case there is violence and intimidation.

Such assumptions are:

  • Carnal Access via the vagina consists in access of the male sexual organ in the vagina. Full penetration or semen output is not necessary.
  • Carnal Access via the anus or mouth consists in the male sexual organ combining with a woman’s anus or mouth. Also in this case partial access is sufficient.
  • Introduction of objects via the vagina or anus, these objects must be substitute objects of the male sexual organ.

Crime junctions: Frequently lesions are provoked on the victim and it is discussed if they should be penalized or not. The answer relies if the lesions are inherent to committing the sexual crime they will not be punished as a lesion crime, but if they exceed the necessary minimal actions to commit the sexual crime there will also be a lesions crime and a crime junction is considered.

If the victim’s death is produced as a consequence of the sexual crime, there will also be a crime junction of homicide or murder, and the author will also be judged for this.

If the sexual aggression is perpetrated employing intimidation, the relation that may arise with threats and coactions will also be a crime junction, even if they happened after the sexual aggression.

Finally in the assumption of an illegal detention practiced on the victim before committing the sexual aggression, there will be a crime junction because the first crime is needed to commit the second.

3. Aggravated Assumptions:

Sentence: Prison from 4 to 10 years for aggressions contemplated in article 178 and 12 to 15 for aggressions contemplated in article 179 when there is a junction in one of the following circumstances:

  • a) When the intimidation or violence applied are marred with a particularly humiliating character. In principle the simple crime is humiliating in itself but this makes reference that it can be understood as a more humiliating manner like the crime committed in plane public view, for example.
  • b) When the acts committed by 2 or more people acting together to consummate the crime, though it is enough if only one person does it, while the others may intervene as cooperators in the execution of the crime.
  • c) When the victim is especially vulnerable because of its age, sickness or situation, and on every case when the victim is younger than 13 years of age, we must think in handicapped people, with a difficult financial situation, addiction to stupefying substances, having certain personality disorders, etc.
  • d) When for the execution of the crime, the responsible has taken advantage of a situation of superiority or kinship, by being a descendant, ascendant, brother, blood or adoption, or close to the victim. It is not enough with the relationship between the people that are in this paragraph, it is necessary for the author of the crime to take advantage of the situation with the victim.
  • e) When the author makes use of weapons or other dangerous devices, capable of producing death or lesions contemplated in articles 149 and 150 of this code, without detriment to the sentence regarding the death or the lesions provoked. If devices are employed to intimidate then the sentence will be aggravated.

Circumstance concurrence: The sentences contemplated will be applied in its superior half if 2 or more circumstances concur.

Crime junction: Especially in lesions.