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.