Online Grooming under Article 183 CP (before LO 10/2022, Art. 183 ter) and its Link to Child Pornography

STS 318/2026, handed down on 29 April 2026 by the Second Chamber of the Spanish Supreme Court (appeal 7186/2023), addresses two matters of practical interest in the defence of cases involving sexual offences in the digital environment: the scope of the offence under Article 183 of the Criminal Code in its relationship with child pornography under Article 189 CP, and the compatibility of a conviction under that provision with the accusatory principle where the prosecution's charge was built on a different legal basis.

Online grooming under Article 183 CP

Article 183 CP punishes contact through technological means — the internet, the telephone or similar channels — with minors under sixteen years of age with the aim of obtaining pornographic material or having the minor witness or participate in acts of a sexual nature. The punishable conduct does not require that the intended purpose be achieved: it is enough that the adult carries out the grooming acts with that aim.

This provision responds to a well-documented reality: the solicitation of minors through social networks, messaging applications or other digital platforms, generally preceded by a process of approach that seeks to build trust before introducing elements of sexual content. Its systematic position within the title dedicated to offences against sexual freedom and sexual integrity reflects that the protected legal interest is the sexual integrity of the minor — understood as the right of minors of a certain age not to be drawn into sexual contexts for which they lack sufficient maturity.

Link with child pornography under Article 189 CP

One of the most relevant points in the judgment concerns the relationship between Article 183 and Article 189 CP. The latter punishes the production, distribution and possession of child sexual abuse material, and requires that such material has come into existence or is held by the perpetrator.

The Supreme Court clarifies in this ruling that grooming directed at obtaining that material operates at a prior stage to the offence under Article 189: it constitutes its preparation or, in technical terms, a form of attempt that goes further than a simple verbal request. The Chamber stresses that this prior stage is independently criminalised and is punishable even if the more serious offence is never completed, which closes the gap that might otherwise exist between the grooming conduct and the actual production of material.

This relationship between the two provisions is practically relevant for the classification of the facts: where grooming produced no result but the sexual purpose is established, Article 183 provides the appropriate criminal basis without needing to stretch the application of Article 189.

The accusatory principle and homogeneous offences

The second issue in the judgment is procedural: whether convicting under Article 183 when the prosecution had built its charge on a different legal basis infringes the accusatory principle.

This principle, of constitutional standing, requires that no one be convicted for facts or for an offence against which they have not been able to defend themselves. Its purpose is to guarantee the right of defence: the accused must know with sufficient notice and precision the facts imputed to them and the legal classification proposed.

The Supreme Court recalls its settled doctrine on homogeneous offences: where two criminal provisions protect the same legal interest, fall within the same title of the Criminal Code and conviction under one of them introduces no new facts and does not substantially alter those already under debate, the court may apply whichever provision it considers correct without infringing the accusatory principle. This is so because the accused has been able to defend against the facts, which remain unchanged, and the variation is purely one of legal characterisation.

Requirements for homogeneity

The Chamber makes clear that homogeneity is not a flexible concept that permits any substitution of classification. For it to operate, the following elements must all be present:

• Identity or proximity of the protected legal interest: in this case, the sexual integrity of the minor, which is common to the provisions in the title dedicated to offences against sexual freedom and integrity.
• Location in the same title of the Criminal Code, which provides a systematic signal that the legislature has treated them as variants of the same protective sphere.
• Absence of substantial alteration of the facts: the factual basis on which the new classification operates must be the same as that which the prosecution placed before the defence.
• A real opportunity to defend: the accused must have had the chance to know and challenge the relevant facts, even if the legal label changes.

Where any of these requirements is missing, a conviction for a different offence from the one charged infringes the accusatory principle and opens the route to appeal. The judgment is, in this respect, a useful reference both for assessing the soundness of charges and for building grounds of challenge when an unexpected variation occurs in the judgment.

Practical significance of the ruling

STS 318/2026 has direct implications for cases in which the conduct under investigation involves the solicitation of minors through digital means. First, it makes clear that Article 183 CP does not require the effective production of material, which reinforces the autonomy of that offence and its applicability to early stages of the grooming process. Second, it defines the conditions under which a change of classification based on homogeneity is compatible with the accusatory principle, providing guidance for both the defence and prosecution strategies in these cases.

For the defence, the judgment recalls that homogeneity has precise limits: if the new classification imposes a substantially different sentencing range, introduces different factual elements or deprives the defence of the chance to challenge some relevant matter, the accusatory principle will have been breached and the decision will be open to appeal. The quality of the prior analysis of these limits can be decisive for the outcome of the challenge.