Criminal Defense Lawyers Specializing in Sexual Assault Crimes
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Court: Court of First Instance
Accusation: Sexual Assault with Penetration
The crime of sexual assault
Sexual assault lawyers
The crime of sexual assault is typified in articles 178 to 180 of the Penal Code and punishes those persons who, without consent and using violence or intimidation, attempt against the sexual freedom of the victim.
It is an intentional crime since the accused is aware that he/she is committing a crime.
It can also be tried as an attempt if the crime has not been consummated, but some of its requirements are met.
The main rights against which this crime is committed are:
- Sexual freedom: It is the right of the individual to decide about his sexuality, to use his body as he wishes and to reject unwanted proposals.
- Sexual indemnity: Sexual indemnity is the right of incapable persons and minors who are not yet mature enough to decide on their sexual behavior.
The main difference of this crime with respect to the crime of sexual abuse is that in the latter there is no violence or intimidation, thus being a milder crime.
Elements of a sexual assault crime
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The crime of sexual assault has two types of elements to be judged, objective and subjective.
For a crime of sexual assault to exist, carnal contact is necessary.
To assess the crime, from an objective point of view, the following criteria are used:
- To value the libidinous spirit of the accused: It occurs when the individual is aware of the sexual aggression and has carnal access as an objective.
- To value the transcendence of the crime. It consists of analyzing the particularities of the crime.
- To value social customs and habits: Depending on the customs of the place where the sexual aggression has been committed, the valuation of the crime will be different.
- Violence: Consists of using physical force to achieve carnal access. It is common to other crimes.
- Intimidation: Consists of threatening the victim, both orally and physically, with a sexual purpose.
In short, these objective values will serve for the jurisprudence to determine whether or not a crime of sexual assault has occurred, as well as the seriousness of the crime.
In addition to the objective criteria that we have analyzed, there are other subjective criteria, which consist of understanding the context of the crime and the particular circumstances of both the accused and the victim. To do this, it is necessary to analyze the specific case, trying to ascertain the intentions of the accused.
It must be taken into account that it has an intentional nature but, if it could not be consummated due to some circumstance external to the accused, it can be judged as an attempt.
Consummation of the crime of sexual assault
The consummation of the crime occurs when the requirements that determine a crime are met. That is, when it is fully realized.
In case the crime could not be consummated, it would be considered an attempt, which serves to judge the crime started, even though it could not be completed for any reason.
In the case of sexual assault, consummation occurs at the moment in which there is bodily contact between the accused and the victim, using violence or intimidation.
If you are involved in a sexual assault crime, count on a law firm with expertise in this area, such as Esteban Abogados Penalistas. Our successful cases in the courts endorse our trajectory.
Aggravating circumstance of sexual assault
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In addition to the necessary requirements for the consummation of the sexual assault, there are a series of aggravating factors that increase the seriousness of the crime and therefore its sentences.
This crime, as indicated in the Penal Law, will be punished with a penalty of five to ten years for those circumstances included in the penal code, article 178, and from twelve to fifteen years for those of article 179, provided that any of the following premises are fulfilled:
- When the rape or intimidation exercised on the victim has a vexatious or degrading character.
- When two or more persons act jointly in the sexual aggression.
- If the victim is especially vulnerable due to age, illness, disability or any other situation that makes her especially sensitive.
- If in order to commit the crime, the accused has benefited from a relationship of superiority or kinship with respect to the victim, being an ascendant, descendant or sibling, by nature or adoption.
- Use of weapons and objects that could cause death or injury to the victim.
The penalties will be imposed in its superior half when two or more of the above mentioned circumstances are fulfilled.
Sexual aggression against minors
Sexual assaults committed on minors are regulated by article 183 of the Penal Code and are punishable with penalties of five to ten years of imprisonment for being more serious.
This sentence is applied when the sexual freedom or indemnity of persons under 16 years of age is violated, using violence or intimidation.
From the age of 16, the person is considered to have sufficient consciousness to give sexual consent.
The sentence will be imposed in its upper half if any of the aggravating circumstances mentioned above are met.
Rape as a sexual assault
Rape is the most serious crime within sexual assault since it is the maximum expression of it and, like other crimes such as sexual abuse, it occurs without the consent of the victim. It also carries a longer sentence, with penalties ranging from six to twelve years.
Rape consists of carnal access, vaginally, anally or or orally, or the introduction of bodily members or objects by any of the first two ways.
It is considered sexual assault because the perpetrator uses violence or intimidation to commit it.
The crime of rape also includes the aggravating factors of sexual assault that could increase the sentence.
Statement of the victim. Valuation as evidence for the prosecution.
In order to consider the victim’s statement as evidence for the prosecution, certain minimum requirements must be verified:
- It must be analyzed if there has been a previous relationship by which it can be concluded that the victim’s statement corresponds to false motives.
- It must be ascertained whether the victim’s historical account is plausible.
- It cannot be an account lost in time, it must have a certain proximity and reiteration.
- It must have been corroborated by objective markers, external to the victim and related to each other.
Penalties for the crime of sexual assault
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The crime of sexual assault involves penalties of one to five years in prison, although this will depend on the severity and other factors such as aggravating factors, whether it has been consummated or on whom it has occurred.
If the crime includes any aggravating factors, the penalties can be up to five and fifteen years, with the upper half being applied when two or more years have been served.
If a rape has been committed, the prison sentence is six to twelve years.
In the case of sexual assault of minors, this crime carries sentences of five to ten years imprisonment.
If you need criminal assistance related to a sexual assault crime, contact the best criminal lawyers in Barcelona.