Sexual assault of minors under 16 years of age

Updated according to the reform of the penal Code operated by the Spanish Organic Law 4/2023.

Criminal defense lawyer specialist in Sexual Crimes

The reform carried out by Organic Law 10/2022 on the comprehensive guarantee of sexual freedom, better known as the «only yes is yes» law, later modified by LO 4/2023, eliminated the distinction between sexual abuse and sexual aggression against minors under sixteen years of age, making any act of a sexual nature with a minor under sixteen years of age a crime of sexual aggression.

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Sexual assault of a minor under 16 years of age WITHOUT carnal access

The Spanish Penal Code, in its article 181.1, punishes those who perform acts of a sexual nature with a minor under sixteen years of age with a penalty of two to six years of imprisonment.

Before continuing to explain the characteristics and penalties involved in this crime, we should understand what Spanish jurisprudence considers sexual acts to be and why the age limit is 16 years old.

  • What are considered acts of a sexual nature?

Acts of a sexual nature are any action that involves bodily contact with sexual significance and in which there is the purpose of obtaining sexual gratification by the perpetrator. Acts of a sexual nature are also considered to include those performed by the minor with a third party or on himself or herself at the request of the perpetrator.

  • Age of sexual consent in Spain

In Spain, the age of sexual consent is set at 16 years old. Therefore, even if the minor consents to the performance of the sexual act, «natural consent,» case law considers that minors under this age are legally incapable; therefore, this will be regarded as invalid and lacking legal relevance «legal consent.»

Suppose the acts of a sexual nature are carried out using violence, intimidation, abuse of superiority or vulnerability of the victim, or on persons who are deprived of their senses or whose will is annulled. In that case, the penalty is increased from 5 to 10 years of imprisonment.

  • Persons deprived of meaning or whose will is nullified

By persons deprived of their senses or their will annulled, the jurisprudence understands that these are situations in which a woman, after having consumed drugs, alcohol, or drugs, is deprived of her senses, so she is incapable of giving her consent. The perpetrator takes advantage of this situation to carry out the sexual act. The perpetrator doesn’t need to given her the elements to reach this state; he has only taken advantage of her situation. If he had provided them, it would be considered an aggravating circumstance, punishable by imprisonment in its upper half.

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Sexual assault of a minor under 16 years of age WITH carnal access.

The existence of carnal access by vaginal, anal, or oral means, or the introduction of bodily members or objects by any of the first two means, considerably increases the penalties in the crime of sexual assault of minors under 16 years of age, punishing the perpetrator to a sentence of eight to twelve years of imprisonment.

Suppose the sexual aggression has been carried out using violence, intimidation, abuse of superiority or vulnerability of the victim, or on persons who are deprived of their senses or whose will has been annulled. In that case, the penalty is increased from 12 to 15 years of imprisonment.

Due to the extraordinary complexity of sex crimes and the high prison sentences they carry, if you are involved in a sexual assault case, put your case in the hands of the best sexual assault lawyers. Rely on our solid reputation for a flawless and successful legal defense.

Mitigating circumstances of the crime of sexual assault of minors under the age of 16.

A lower prison sentence may be imposed according to the minor nature of the act and taking into account all the concurrent circumstances, including the personal circumstances of the offender, except when there is violence or intimidation or when it is carried out on a victim whose will is annulled for any reason, or when there are aggravating circumstances.

This attenuated modality applies to conduct in which a sentence of two to six years of imprisonment could be considered disproportionate, such as a kiss on the mouth or neck or a minor touching. This legal provision allows for better individualization of the penalty given the unique circumstances of the specific case.

The circumstances that the judges value for the appreciation of this subtype are the place where the aggression is committed, considering more serious the aggressions that take place in the victim’s home, educational center, or, in general, in those places where the victim’s private, professional or school life takes place; the specific means used in the execution; the victim’s age; the foreseeable affectation for his development or the sequels that the act may foreseeably cause.

Aggravating circumstances of the crime of sexual assault of minors under the age of 16.

The penal Code considers the following as aggravating circumstances of the crime of sexual assault, punishable by imprisonment in its upper half:

  1. When two or more persons commit the facts.

For the application of this aggravating circumstance, the subjects must collaborate or in a conspiracy to sexually assault the victim, but it is not necessary to have a previous agreement between them; a accidental deal is enough.

In recent years, case law has admitted the possibility of applying this aggravated subtype to necessary cooperators and accomplices, provided that more than two persons execute the typical action.

If only two persons are involved, and one is considered a necessary cooperator, applying the aggravated subtype to the latter will not be possible. If, on the other hand, each of them is both the author of the act and cooperates with the other author, the aggravated subtype would be considered.

  1. When sexual aggression is preceded or accompanied by severe violence or acts of a particularly degrading or humiliating nature.

Before the reform of LO 10/2022, the violence or intimidation used in the execution of sexual aggression needed to be particularly degrading or vexatious for this aggravating circumstance to apply. After the reform, the new precept requires that the act be particularly degrading or humiliating without requiring violence to perpetuate the crime.

  1. When the acts are committed against a person who is in a situation of particular vulnerability due to age, illness, disability, or any other circumstance, and, in any case, when the victim is under four years of age.

  2. When the victim is or has been a partner of the perpetrator, even without cohabitation.

Only men who commit sexual violence against women can be perpetrators of this aggravated subtype.

  1. When, for the execution of the crime, the person responsible has taken advantage of a situation or relationship of cohabitation or kinship or a relationship of superiority concerning the victim.

Prevalence is understood as any state or situation of superiority concerning the victim that the perpetrator takes advantage of to assault the victim sexually. It is a kind of intimidation, but of a lower degree, which does not impede the freedom of decision but considerably diminishes it.

  1. When the perpetrator makes use of weapons or other equally dangerous means, susceptible of producing death or any of the injuries foreseen in articles 149 and 150 of this Code, without prejudice to the provisions of article 194 bis.

Case law excludes the mere exhibition of the weapon or dangerous instrument (screwdriver, hammer, mace, club, etc.) from this aggravated subtype. However, when the weapon or dangerous means is attacked, even when the attack does not reach the victim’s body, or when the instrument is brought close to a sensitive area where death or severe injury could be caused, for example, placing a knife next to the neck or abdomen, or a gun pointed at the head or thorax, this aggravating circumstance will be applied.

  1. When for the commission of these facts, the responsible person has annulled the will of the victim, supplying him/her with drugs, drugs, or any other natural or chemical substance suitable for this purpose.

In this case, the prosecution will have to prove that the victim’s condition was caused by the accused or by third parties in cahoots with him. If the authorship of the supply is not proven, this circumstance will not apply.

  1. When the offense has been committed within an organization or a criminal group engaged in such activities.

If two or more of the above circumstances concur, the penalties of the preceding paragraph shall be imposed in the upper half.

Sexual offenses against children under 16 in the penal Code.

The crime of sexual aggression to minors under 16 years of age is typified in the penal Code in chapter II, title VIII, within the crimes against sexual freedom and is structured as follows.

  • Art 181.1: Acts of a sexual nature with a minor under 16 years of age.
  • Art. 181.2: Acts of a sexual nature with a minor under 16 years of age with violence, intimidation, woman with annulled will, abuse of superiority or vulnerability of the victim.
  • Art. 181.3: Attenuated subtype.
  • Art 181.4: Sexual assault with carnal access with a minor under 16 years of age.
  • Art 181.5: Aggravated subtype