Groping and Unwanted Touching: Sexual Assault and Defence (Art. 178 CP)
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listIn this article
lightbulbKey Takeaways
- check_circleTouching without consent = sexual assault (Art. 178 CP)
- check_circleLO 10/2022 merged sexual assault and sexual abuse
- check_circleBasic penalty: 1 to 4 years; under 16: Art. 181 (2-6)
- check_circleDefence: consent, sexual nature and evidence
- check_circleThe Supreme Court's three parameters on the victim's statement
Quick answer
Sexual touching carried out without consent is, after LO 10/2022 ('only yes means yes'), the offence of sexual assault under Art. 178 CP, which merged the former offences of sexual assault and sexual abuse. The basic penalty is 1 to 4 years' imprisonment; it is aggravated (upper half, possibly one degree higher) where there is violence, intimidation or abuse of superiority (Art. 178.2 and 3 CP). If the victim is under sixteen, the offence is Art. 181 CP (2 to 6 years). The defence focuses on consent, the sexual nature of the act and the evidence.
Few situations cause as much anxiety as receiving a report for groping or unwanted touching. It is best to start from the legal texts with precision and with full respect for the presumption of innocence. As criminal-defence lawyers who take on the defence in offences against sexual freedom, we explain what the law actually punishes, the penalties and the lines of defence.
What groping is in criminal-law terms
There is no offence called 'groping' as such. The conduct —touching intimate areas or carrying out a contact of a sexual nature without consent— now falls under the offence of sexual assault in Art. 178 CP. LO 10/2022 ('only yes means yes') merged the former offences of sexual assault and sexual abuse into a single type built on the absence of consent: any act that attacks another person's sexual freedom without their consent is sexual assault, whether or not there is violence.
The key: consent
Art. 178.1 CP defines when there is consent: 'consent shall be deemed to exist only when it has been freely expressed through acts that, in light of the circumstances of the case, clearly convey the person's will'. That is why the evidentiary debate in these proceedings almost always turns on whether that clear expression of will existed and how the context was interpreted.
The penalties
- Basic offence (Art. 178.1 CP): 1 to 4 years in prison.
- Aggravated modalities (Art. 178.2 and 3 CP): where there is violence, intimidation or abuse of a position of superiority or vulnerability, the penalty is imposed in its upper half and may reach one degree higher.
- Victim under sixteen (Art. 181 CP): 2 to 6 years, rising to 5-10 years if the Art. 178.2 and 3 modalities apply.
Custodial penalties may be accompanied by significant accessory consequences, such as entry in the Central Register of Sex Offenders and disqualification from activities involving regular contact with minors. The exact characterisation of the facts is therefore decisive.
Lines of defence
With full respect for the presumption of innocence, the defence against a groping charge is usually organised around several lines, always depending on the facts:
- Consent: establishing that there was a free expression of will, or that the person investigated could reasonably understand there was, in light of the context and prior communications.
- Absence of sexual nature or intent: contesting that the contact had sexual content, as opposed to fortuitous or accidental contact or contact typical of certain settings (crowds, sport, medical care).
- Analysis of the testimony: assessing the complainant's statement against the Supreme Court's three parameters —absence of subjective lack of credibility, plausibility with peripheral corroboration, and persistence in the accusation— which are also the levers of the defence.
- Evidence and context: providing messages, witnesses, recordings or any element that reconstructs what actually happened and rebuts the incriminating account.
- Mistake: in specific cases, a mistake about elements of the offence (for example, about age where appearance was misleading) may be relevant.
What to do if you are reported
Do not testify without a lawyer or attend the first statement unprepared: it fixes a version that is hard to correct later. Keep everything that helps reconstruct the context (conversations, witnesses, locations) and do not contact the complainant, which could be held against you. Early intervention by the lawyer is decisive to prepare the strategy and preserve favourable evidence.
Sexual-offence defence with Alonso Sala
At Alonso Sala, a criminal-defence firm in Madrid (C/ Velázquez 27) with coverage throughout Spain, we take on the defence in sexual-assault charges with the discretion and rigour the matter demands. Read more on our sexual assault page.
Frequently asked questions
Is unwanted touching a crime?expand_more
Yes, where it is of a sexual nature and carried out without the other person's consent. Since LO 10/2022 it is the offence of sexual assault (Art. 178 CP); the distinction between 'assault' and 'abuse' no longer exists. Consent must have been freely expressed through acts that clearly convey the person's will.
What is the penalty for groping?expand_more
The basic offence under Art. 178.1 CP carries 1 to 4 years' imprisonment. Where there is violence, intimidation or abuse of superiority or vulnerability (Art. 178.2 and 3 CP), the penalty is imposed in its upper half and may reach one degree higher. If the victim is under sixteen, the offence is Art. 181 CP, with 2 to 6 years.
What if it was an accidental contact with no sexual intent?expand_more
This is a relevant line of defence. The offence requires the act to be of a sexual nature; a fortuitous or accidental contact, or one without sexual connotation assessed in context, may fall outside the offence. Evidence about how and in what circumstances the contact occurred is decisive.
Is the complainant's word alone enough to convict?expand_more
The victim's statement can be sufficient evidence, but the Supreme Court requires it to be assessed against three parameters: absence of subjective lack of credibility (no improper motives), plausibility with peripheral corroboration, and persistence in the accusation. The defence works precisely on those three axes.
I've been reported for groping, what should I do?expand_more
Do not testify without a lawyer and exercise your right to remain silent (Art. 118 LECrim) until you know the content of the proceedings. The first statement shapes the case. Keep any evidence about the context (messages, witnesses, recordings) and avoid contacting the complainant.
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