When Several Sexual Assaults on a Minor Amount to a Continued Offence

When the same minor is subjected to several sexual assaults, the question of whether the facts should be classified as a single continued offence or as multiple offences in real concurrence is not merely technical: it directly conditions the sentence that may be imposed. The Supreme Court, in its judgment of 13 April 2026 (appeal 4211/2023), fixes the criteria for answering that question with precision, with reference to Articles 178, 179 and 181 of the Criminal Code.

What the continued offence is and what role it plays in this field

The continued offence is regulated in Article 74 of the Criminal Code. It allows several infractions to be treated as a single legal unit where the circumstances in which they are committed present a sufficient link to prevent their being regarded as entirely independent. Its sentencing regime is specific: the penalty for the most serious offence is applied in its upper half, with the ceiling that the result must not exceed the real-concurrence outcome.

In the field of offences against the sexual integrity of minors, the Supreme Court has historically admitted the continued-offence figure with caution. The reason is that the legally protected interests at stake — sexual freedom and integrity — are strictly personal, which complicates the recognition of criminal unity. Nevertheless, the court has acknowledged that, where certain requirements are met, criminal continuity is legally compatible with these offences. The judgment of 13 April 2026 provides a precise statement of those requirements.

The three requirements for criminal continuity

The Supreme Court identifies three conditions that must concur cumulatively for a continued offence to be found in cases of repeated sexual assaults against a minor:

• Preconceived plan: the various acts of conduct must respond to a single unitary intention that covers them from the outset, not to independent spontaneous impulses. Unity of purpose is not presumed: it must be derived from objective data that establish it.
• Same opportunity: the acts must exploit similar circumstances of access or proximity. The recurrence of the situation — for example, a cohabitation or trust relationship that provides repeated access to the minor — is the element that most commonly justifies this requirement.
• Same victim: criminal continuity can only be found where the different acts are directed at the same person. Where there are multiple victims, continuity does not apply and there will be real concurrence.

The absence of any one of these three elements excludes continuity and requires each act to be classified independently, with the sentencing consequences that entails.

Sentencing consequences of the classification

The distinction between a continued offence and real concurrence has a concrete sentencing impact. In real concurrence, sentences are accumulated subject to the limits of Article 76 of the Criminal Code. In a continued offence, the penalty for the most serious infraction is applied in its upper half.

Since sexual assaults on minors are punished with heavy sentences under Articles 178, 179 and 181 of the Criminal Code — with specific aggravating circumstances where penetration or a position of trust or authority is involved — the upper-half range of the continued offence may in some cases be less severe than accumulated real concurrence, and in others more so. The comparison must always be made by reference to the specific applicable penalties and the accumulation rules, without assuming that one classification will always be more favourable than the other.

Relevance to the defence strategy

For criminal defence practitioners in these proceedings, the doctrine set out by the Supreme Court in this judgment has implications on several levels.

First, the provisional classification of the facts by the prosecution will determine the sentencing range the accused faces. If the prosecution opts for a continued offence, the defence may challenge the concurrence of the three requirements — in particular the actual existence of a preconceived plan — in order to have the facts judged as independent offences if that proves more favourable. If the prosecution opts for real concurrence, the defence may argue for the recognition of continuity where the requirements are met, with the same sentencing consequences in reverse.

Second, the debate over the requirements of the continued offence develops at the stage of final classification, which means the defence strategy must be ready for this discussion from the early stages of the proceedings. Evidence about the context in which the facts occurred — the relationship between the perpetrator and the victim, the presence or absence of a stable pattern, the circumstances of access — is decisive for sustaining or rebutting the unity of the preconceived plan.

Applicable provisions: Articles 178, 179 and 181 of the Criminal Code

The judgment of 13 April 2026 falls within the regime currently in force for offences against the sexual integrity of minors following Organic Law 10/2022 and the subsequent amendment made by Organic Law 4/2023. Articles 178 and 179 of the Criminal Code define sexual assault and sexual assault involving penetration or bodily access, while Article 181 punishes sexual assault where the victim is under sixteen years of age, with the aggravated sentencing ranges that correspond to that status.

Correctly identifying the applicable offence for each specific act is the first step in determining which regime — continuity or real concurrence — applies and what its effects are. The Supreme Court's doctrine on the requirements of continuity operates within that legal framework, which cannot be overlooked when formulating the classification or when lodging the cassation appeals that challenge the sentence imposed.

Practical criteria derived from the judgment

The judgment of 13 April 2026 consolidates a line of doctrine that has direct practical application in proceedings for repeated sexual assault against minors. The criteria it provides allow both the prosecution's classification and the technical defence in these cases to be approached with greater precision.

Three practical criteria emerge from the Supreme Court's doctrine. First, criminal continuity does not operate automatically from the mere fact that there have been several acts against the same victim: the unitary plan must be established. Second, a cohabitation or habitual access relationship with the minor may be the factor that supports the same-opportunity requirement, but must be proved in the specific case. Third, where the three requirements are not met, the correct classification is real concurrence, with its own accumulation rules and the limits of Article 76 of the Criminal Code. The defence that understands and applies this doctrine will be better placed to construct a technically sound classification strategy.