Sexual Abuse

Criminal Defense Lawyers Specializing in Sexual Abuse Crimes

Recent Success Cases

Sexual Abuse

Result: Absolution

Court: Provincial Court
Prosecution: Public Prosecutor's Office and private prosecution.
Requested sentence: 6 years imprisonment for sexual abuse with penetration.

Sexual Abuse

Result: Absolution

Court: Criminal Court
Prosecution: Public Prosecutor's Office and private accusation.
Requested sentence: 4 years of imprisonment for continuous sexual abuse.

Table of Contents

The Crime of Sexual Abuse

Lawyers Sexual Abuse

The crime of sexual abuse is typified in article 181 of the Penal Code and punishes with a prison sentence of one to three years or a fine of eighteen to twenty-four months anyone who, without violence or intimidation and without consent, violates the sexual freedom or indemnity of another person. The person responsible for the abuse must have libidinous animus. One of the most common cases is the surprise touching of erogenous zones, including the buttocks.

Sexual abuse is also considered as non-consensual when it is performed on persons deprived of senses, with the will annulled by drugs, pharmaceuticals, strong ethyl intoxication or affected by a mental disorder.

Not all mental disorders are susceptible to integrate a crime of abuse. Courts have concluded that mental illnesses such as paranoid schizophrenia do not make a person more vulnerable to sexual abuse. The mental disorder must be apparent, known to the abuser and causally relevant to question the validity of the consent given.

Sexual relations with minors under 16 years of age are legally non-consensual, even if the minor has given consent, according to article 183 of the Criminal Code.

The absence of consent of the victim must be clearly formulated and perceived by the alleged perpetrator of the crime of abuse.

Therefore, consent will not be valid if the person is incapable of consenting or if there is coercion. Thus, the courts have established that there was no abuse in the case of surprise touching in which the person touched then consents to sleep with the accused, at which time the touching occurs again without opposition.

Sexual acts without violence or intimidation that have taken place with vitiated consent, taking advantage of a position of superiority that restricts the victim’s freedom, are considered sexual abuse, which is considered prevalence. A part of the jurisprudence understands that abuse with prevalence must be accompanied by coercion to achieve consent, but another current of jurisprudence considers that the crime can be incurred, even without coercion, when the situation of superiority is evident, as in the cases of teachers and students, victims with low intellectual or maturity level (provided that it is evident or known by the accused) and family members. Prevalence does not exist if the person who is in a situation of inferiority is the one who proposes sexual intercourse.

The penalty is aggravated and can reach up to ten years of imprisonment when the sexual abuse involves anal or vaginal penetration (even with fingers or objects) or oral penetration.

The penalty is imposed in its upper half when the victim is especially vulnerable because of age difference (significant enough to create a situation of superiority), disability or illness and the perpetrator has committed the abuse using a situation of superiority or kinship that facilitates the commission of the crime.

Attempt is possible in the crime of sexual abuse, when the contact does not occur because something prevents it at the last moment, such as a kick of the victim, a fall by accident or the impossibility of an erection.

Sexual abuse can be punished as a continuous crime when sexual relations are repeated with a single victim and a single purpose and situation, but it is not appreciated by the courts when the victims, circumstances and places are different, so there is no connection between them.

Differences between sexual assault and sexual abuse

Explained by our Sexual Abuse Attorneys

The most notable difference is that sexual assault involves the use of violence or intimidation for a sexual purpose. Likewise, there are also differences in the penalties for each of these two crimes, with sexual assault being more serious.

Crime of sexual assault

The crime of sexual assault is typified in articles 178 to 180 of the Penal Code. It is an intentional and active crime since the accused is aware that he/she is committing a crime against the integrity of the other person. It occurs when there is a sexual activity, not consented by the victim, and violence or intimidation is used to achieve it, thus violating the sexual freedom of the person.

This crime carries penalties of one to five years in prison. The following criteria are used to determine its seriousness:

  • To value the libidinous spirit of the author.
  • To value the uses and customs.
  • To value the entity and transcendence of the act.

Crime of sexual abuse

The crime of sexual abuse is regulated by articles 181 and 182 of the Penal Code and punishes those who, without using violence and intimidation, attempt against the sexual freedom of another person without his consent. These articles protect the following fundamental rights:

  • Sexual freedom: The individual’s freedom of will to consent to sexual contact.
  • Sexual Indemnity: It occurs when the victims are minors or incapable persons who have not yet reached sexual maturity.

Sexual abuse is punishable by imprisonment of one to three years or a fine of eighteen to twenty-four months. The penalties are lighter than those for sexual assault as it is a less serious crime since there is no violence.

Non-consensual sexual abuse

The Penal Code considers as non-consensual sexual abuses those that are produced on persons deprived of sense, with a mental disorder which is abused and those that are produced using drugs or medicines that annul the will and the free decision of the person.

It is also considered a crime if the consent has been obtained due to a prevalence, that is, a situation of superiority on the part of the accused, applying the same sentences mentioned above.

Aggravating circumstances of sexual abuse

Our sexual abuse lawyers have extensive experience as specialists in the field.

The crime of sexual abuse also presents conducts considered as aggravating circumstances of the crime:

  • When the sexual abuse occurs through carnal access by vaginal, anal or oral means.
  • When bodily members or objects are introduced vaginally or anally.

In these cases, the accused shall be sentenced to imprisonment for a term of four to ten years.

In turn, the penalties shall be imposed in their upper half if any of the following premises are met:

  • When the accused takes advantage of a relationship of superiority or kinship with the victim to commit the crime.
  • If the guilty party uses weapons or other dangerous objects, which could cause death or injury to the victim, with the objective of sexually abusing the victim.

Penalties for sexual abuse

As Sexual Abuse Lawyers we have a deep knowledge of the law.

The Penal Code punishes with penalties of one to three years of imprisonment or a fine of eighteen to twenty-four months. Aggravating factors are also taken into account, as mentioned above, and the sentence can be increased from four to ten years of imprisonment.

We are facing a sexual crime punished with a high prison sentence and in which, as expert criminal lawyers, with a long trajectory in the courts, we know that the immediate action of the lawyer is decisive for the good resolution of the case.

The judicial process of the crime of sexual abuse

Explained by our lawyers specialized in Sexual Abuse in Barcelona.

The judicial process of a crime of sexual abuse begins with a phase called instruction in which the corresponding territorial court of instruction is responsible for investigating and identifying the perpetrator or perpetrators to clarify the facts.

In the intermediate phase, the examining magistrate analyzes whether and how the facts should be judged. In this phase the victim and possible witnesses formulate the crime committed, the accused and provide the necessary evidence.

Finally, if the judge decides that the facts are worthy of being judged, the case is transferred to the Criminal Court, to the Provincial Court or to the Jury Court that will be in charge of judging the facts.

Sexual abuse of minors

We are child sexual abuse Lawyers in Barcelona

The abuse of minors occurs when the crime is committed against a victim between 16 and 18 years of age and is produced through coercion or thanks to a position of superiority, authority or proximity.

In this case, the crime carries penalties of between one and six years in prison. If the facts consist of carnal access by vaginal, anal or oral means, or introduction of bodily members or objects by any of these means, the penalty is two to six years imprisonment.

If the crime of sexual abuse is committed against an individual under 16 years of age, it is punishable with a sentence of eight to twelve years. It is typified by article 183 of the Penal Code.

If you are or have been a victim of childhood sexual abuse or have been involved in it, contact our legal team, we offer legal advice and the experience and professionalism that your case needs.

What is the Certificate of Sexual Offenses

The certificate of sexual offenses is an accrediting document issued by the Ministry of Justice that informs about the record or not of criminal record for sexual offenses. This record is compiled in the Central Registry of Sexual Offenders, created by the Royal Decree of December 11, which collects the sentences and security measures imposed on convicted persons, as well as their DNA genetic profile and identity data.

The Registry includes all citizens convicted in a final sentence for crimes against sexual freedom, regardless of the age of the victim, which includes crimes of sexual abuse and aggression, child pornography or trafficking in human beings for the purpose of sexual exploitation. The objective of the registry is to prevent and protect minors against sexual abuse and exploitation. In this way, it is intended to prevent those convicted of these sexual crimes from working in jobs that involve regular contact with minors, as well as to facilitate the identification of perpetrators of crimes against sexual freedom and indemnity.

The Register adapts to Spanish law article 37 of the Council of Europe Convention for the Protection of Children against Sexual Exploitation and Sexual Abuse of October 25, 2007. The Register came into force on February 29, 2016, two months after the official publication in the Official State Gazette of the Royal Decree regulating it. The data in the Register can only be accessed by the Public Prosecutor’s Office, the Judicial Police and the Courts and Tribunals, solely within the framework of the exercise of their competences. Public entities for the protection of minors and foreign judicial or police authorities may also request data from the Register in connection with police or judicial investigations, in accordance with the provisions of international treaties in force.

Negative Certificate of Sexual Offenses

The Negative Certificate of Sexual Offenses is an official document issued by the Office of the Central Registry of Sexual Offenders, belonging to the Ministry of Justice, which certifies that a citizen does not have a criminal record for sexual offenses. Organic Law 1/1996, of January 15, 1996, on the Legal Protection of Minors, partially modifies the Civil Code and the Criminal Procedure Law. In its section 5, with the amendment operated by Law 26/2015 of July 28, establishes the requirement of not having been convicted by final judgment for crimes against sexual freedom and indemnity to access and exercise trades and professions that involve frequent contact with minors. Consequently, the absence of a record for sexual offenses is currently required to be able to work as a teacher or monitor of minors, among others.

The Central Register of Convicted Persons and the Central Criminal Register of Minors are obliged to send to the Central Register of Sex Offenders the information on criminal records: sentences and security measures imposed by final judgment for sexual offenses. The information collected in the Registry includes both convictions imposed in Spain and those handed down in other countries. Convictions prior to the date of entry into force of the Decree creating the Registry (February 29, 2016), will be forwarded to the Registry automatically in the state in which they are found. Normally, the non-Spanish convictions most likely to appear in the Register will be those from European Union and Council of Europe states.

The validity of the certificate is permanent, lasts without ceasing to be valid and does not expire, since no specific expiration date is foreseen in the regulation. According to the Data Protection Agency, it will only be necessary to renew the certificate if new circumstances come to light that could cause the content of the certificate to change. In this case, the company or the Administration could demand the renewal.

How to request a Certificate of Sexual Offenses

Those who wish to exercise trades, professions, volunteer work or activities that involve regular contact with minors must apply for a certificate that proves that they do not have a record of sexual offenses.

Regular work with minors is defined as work that by its nature and essence involves frequent interaction with minors. However, it is not necessary to request a certificate when the work is oriented to the general public and not exclusively directed to minors, even though minors may be among this public.

Foreigners must also attach, in order to obtain the certificate, a document certifying the absence of a criminal record from their country of nationality or origin. The Certificate of Sexual Offenses is managed by the General Secretariat of the Administration of Justice belonging to the Secretary of State for Justice. It is free of charge. Minors or legally incapacitated persons must apply through their legal representative.

The request to obtain the certificate certifying not having committed criminal offenses of a sexual nature can be made by the following means:

  • By Internet in the electronic headquarters of the Ministry of Justice. The procedure can be carried out by means of electronic ID, electronic signature or digital certificate. You can download the application form.
  • At the Citizen Folder service of the Ministry of Finance and Public Administrations.
  • By mail addressed to the Citizen’s Attention Center at c/ Bolsa 6, Madrid.

Where to request the Certificate of Sexual Offenses in person

The certificate can be requested in person at the Territorial Offices of the Ministry of Justice, at the territorial registries of the Autonomous Communities and at the subdelegations of the Government ofç the Provinces.