Initial Use of Violence Already Amounts to Commencement of a Sexual Assault in Spain

The judgment handed down in case 10556/2025, dated 24 March 2026, addresses one of the most frequent and delicate questions in the classification of offences against sexual freedom: the boundary between merely preparatory acts — which are in principle unpunishable — and the commencement of execution of the offence, which already constitutes a punishable attempt under Article 16 CP.

Attempt under Article 16 CP: elements and structure

Article 16 CP defines an attempt as the commencement of the execution of the offence directly through external acts, performing all or some of the acts that should objectively produce the result, without the result occurring for reasons outside the author's will. The provision therefore requires three concurrent elements: an external act of execution, that the act is objectively capable of producing the typical result, and that the result does not occur for reasons independent of the accused's will.

The CP thus distinguishes an attempt from preparatory acts, which are generally unpunishable unless the text itself expressly penalises the proposal, conspiracy or incitement to commit the offence. The line between the two is not always clear on the facts: it depends on assessments of the objective meaning of each act in relation to the specific offence considered to have been commenced.

The natural conception of the act doctrine

The Second Chamber has consolidated the natural conception of the act as the criterion for drawing that boundary. Under this criterion, commencement of execution exists when the act performed, assessed from the perspective of an objective observer with knowledge of the situation, already forms part of the executive action described in the offence. This is not a merely formal analysis of whether the accused has performed the nuclear act of the offence, but a substantive assessment of whether the accused has already entered the sequence of conduct that objectively leads to its completion.

This approach has an important consequence: an attempt may be found even if the accused has not yet performed the central element of the offence, provided that the specific act, by its nature and position in the development of the facts, objectively belongs to the execution phase rather than the preparatory phase. The criterion is not subjective — the author's mental representation is not sufficient — it requires that the act be externally perceptible and objectively recognisable as part of the execution.

Initial violence as an act of execution in sexual assault

Applying that framework to the case examined, the Supreme Court concludes that using violence to overcome the victim's resistance already constitutes an act of execution of the sexual assault, not a merely preparatory act. The reason is structural: a sexual assault as defined in the CP requires that the sexual act be performed using violence or intimidation; violence is not a prior and separable element of the offence but an integral part of its own executive action. When the accused uses violence for that purpose, the accused is already performing one of the acts that, objectively, form part of the execution of the offence.

The reasoning is supported by the very structure of the offence: if violence or intimidation are the means of commission that define the aggravated type over other offences against sexual freedom, it is coherent that their use marks the commencement of the execution of that specific type. The Supreme Court thus rejects the classification as unpunishable preparation of conduct that already deploys the coercive element that is characteristic of the offence.

The boundary with preparatory acts: operational criteria

The doctrine set out does not mean that every act with a sexual connotation constitutes an attempt. The Chamber maintains the requirement of an objective suitability assessment: the act must be objectively adequate, in the context of the proven facts, to produce the typical result. Acts that merely reveal the author's intention but are by their own nature equivocal or are not recognisably part of the execution of the specific offence may still be classified as preparation.

For criminal defence practice, this involves a careful analysis of the prosecution's account of the facts: if the acts attributed to the accused do not include an external act that objectively belongs to the execution of the offence — because they are merely equivocal, have a reasonable alternative explanation, or do not reach the threshold of the required violence or intimidation — the classification as an attempt may be challenged. The debate is not only legal: precise description of the facts and their evidential assessment are determinative.

Voluntary withdrawal: the exception that may exclude punishment

Article 16.2 CP provides that a person who voluntarily desists from an execution already commenced, voluntarily prevents the result from occurring, or actively prevents it shall be exempt from criminal liability. This provision is relevant precisely when the Supreme Court's doctrine places the commencement of execution at an earlier stage: the earlier the attempt begins, the wider the window during which voluntary withdrawal may operate.

Case law requires that the withdrawal be voluntary — not motivated by external obstacles that make continuation impossible — and, where the offence is already at an advanced stage of execution, that it be active, meaning the author effectively intervenes to prevent the result. Where the abandonment of execution is caused by reasons outside the author's will, there is no withdrawal but a completed attempt. The distinction between voluntary withdrawal and external causes is, in many cases, the core of the defence.

Practical significance of the classification

Whether the facts are classified as an attempt, a completed offence, or an unpunishable preparatory act has direct consequences for the sentence. An attempt is punished under Article 62 CP with the penalty reduced by one or two degrees from that provided for the completed offence, taking into account the danger inherent in the attempt and the degree of execution reached. In offences carrying high penalties, that reduction can be decisive for the defence strategy and for the final outcome.

The doctrine set by the Supreme Court in case 10556/2025 provides a clear parameter for guiding that classification in sexual assault cases involving initial violence: the use of that coercive element already belongs to the execution of the offence. Technical defence must start from that framework and build its argument, where appropriate, on the evidence of the facts, the voluntariness of any withdrawal, or the existence of circumstances that affect the penalty within the sentencing range for the attempt.