Organic Law 8/2021: Child Protection and Criminal Changes

Organic Law 8/2021, of 4 June, on the comprehensive protection of children and adolescents against violence (known as the "Rhodes Law") is one of the reforms with the greatest impact on the criminal response to offences committed against minors. Although it is a cross-cutting statute affecting many areas — education, health, social services and procedure — its criminal component introduced significant changes to the Criminal Code (CP). As a firm dedicated exclusively to criminal law, we explain what changed, why, and above all what it means today for anyone being investigated or prosecuted, as well as for those acting as victims or injured parties. You can review the full picture of recent legislative changes on our criminal law reforms page.

What the reform changed and why

The starting point of Organic Law 8/2021 is a finding repeatedly made in the field of child protection: minor victims often take many years to be able to put into words and report the harm they suffered, particularly in offences against sexual freedom and integrity. By the time they do, it is not unusual for the offence to have already become time-barred under the general rules, leaving the conduct without a criminal response despite its seriousness.

The reform responded to that reality with a twofold aim: on the one hand, to prevent the mere passage of time from leaving the most serious offences against minors unpunished, by delaying when the limitation period starts to run; on the other, to preserve the minor's testimony and avoid re-victimisation, reinforcing pre-recorded evidence so that the child does not have to testify several times or face the trial years later. To this it added a new offence designed for the digital environment. The common purpose of all these measures is to adapt criminal proceedings to the specific needs of the minor victim without sacrificing the safeguards owed to the person investigated.

The new calculation of limitation periods (Art. 132 CP)

The most discussed change affects Article 132 CP, which governs when the limitation period for an offence begins to run. The general rule is that the period is counted from the day the offence was committed. For certain serious offences committed against minors, Organic Law 8/2021 delayed that starting point.

Under its current wording, for those most serious offences the limitation period does not begin to run until the victim turns 35 (and only from then do the general periods apply according to the penalty for the offence). Before the reform, the starting point was set at a younger age. The practical consequence is that the time window during which a victim who suffered the offence as a minor can report it without the criminal action having become time-barred is significantly extended.

• Which offences it covers. The rule is reserved for the most serious offences against minors, notably offences against life, physical integrity, freedom, moral integrity, sexual freedom and integrity, and other especially harmful offences committed against a person who is a minor. It is not a universal rule for any infringement.
• From when it applies. The amendment operates going forward and applies to periods that had not yet elapsed when it entered into force. The temporal application of this rule — whether the offence was already time-barred or not under the previous law — is one of the most delicate technical questions in each case.
• Why it matters. Determining the exact date of the facts, the victim's age and the limitation regime in force at each point can be decisive both for sustaining the prosecution and for building the defence.

The reinforcement of pre-recorded evidence

The second criminal-procedural pillar of the reform is the consolidation of pre-recorded evidence in the testimony of minors. Pre-recorded evidence consists of taking the minor victim's statement only once, at an early stage of the proceedings, in conditions adapted to their age (a specialised setting, the presence of professionals, audiovisual recording), so that the statement can serve as evidence at trial without the minor having to testify again at the hearing.

The purpose is twofold: to protect the minor from the re-victimisation of repeatedly recounting the facts, and to preserve the quality of the testimony, capturing it when the memory is closer to the events. For investigated and accused persons, this device poses an obvious challenge: the main item of evidence may be fixed before the trial, so the opportunity to challenge it is concentrated in that single act.

That is why the law requires pre-recorded evidence to be taken with all the safeguards: with judicial involvement, with the defence present and able to take part, and allowing the defence to put questions (directly or through the professional conducting the interview). Where those safeguards are respected, the statement is fully valid; where they are omitted or carried out defectively, its evidential value is compromised.

The new Art. 143 bis CP: content promoting self-harm or suicide

Organic Law 8/2021 also introduced Article 143 bis CP, an offence born of the digital context. It punishes the public dissemination, through the internet, the telephone or any information and communication technology, of content aimed at promoting, encouraging or inciting suicide or self-harm by minors or persons with disabilities in need of special protection.

This is an offence that protects especially vulnerable groups against the proliferation of dangerous content on social networks and digital platforms (so-called self-harm "challenges", forums glorifying self-injury, and the like). Its essential elements are the public dissemination of the content, its orientation towards promoting self-harm or suicide, and its protected addressee (minors or persons with disabilities in need of special protection). The provision also allows the judicial authority to order the removal of such content or the blocking of access to it.

What it means today for the investigated, the accused and victims

For anyone being investigated or prosecuted for an offence against a minor, the reform changes the playing field. Limitation is no longer the barrier it once was for old facts, so the defence must analyse with precision the date of the facts, the victim's age and the limitation rule applicable in each time period. And the minor's testimony tends to be fixed through pre-recorded evidence, which requires the defence to prepare its involvement at a very early stage, without waiting for the trial.

For those acting as victims or injured parties, the reform makes it easier to report and prosecute acts suffered in childhood even many years later, and reduces the burden of testifying several times. The prosecution must nonetheless sustain a technically sound charge and ensure that the pre-recorded evidence is taken correctly, because any defect can turn against the victim themselves.

All these matters are subject, as with any reform, to the principle of application of the most favourable criminal law and of non-retroactivity of unfavourable criminal rules. The limitation rule, Article 143 bis CP and the other changes must be applied to the facts in compliance with these principles, which makes temporal application a central point of debate.

Defence strategies

On the basis of the new regulation, the main lines of defence we work on are:

• Safeguards and adversarial testing of pre-recorded evidence. This is the central line. Verifying that the minor's statement was taken with judicial involvement, with the defence present and with a genuine opportunity to put questions. If the right to challenge was breached or essential safeguards were omitted, its validity as evidence for the prosecution must be questioned.
• Temporal application of the limitation rules. Analysing the exact date of the facts and the victim's age to determine whether, under the law in force at each point, the criminal action had become time-barred before the reform, without retroactively applying unfavourable rules.
• Rigorous examination of the elements of the offence. In Article 143 bis CP, requiring that the public dissemination, the purpose of promoting self-harm or suicide, and the protected status of the addressee all concur, as opposed to conduct that does not meet all those requirements.
• Assessment of a single witness. Where a conviction rests decisively on the minor's statement, requiring a careful analysis of credibility, consistency and corroboration, in line with the settled criteria for the testimony of a victim.
• Presumption of innocence. Recalling that strengthening the protection of minors does not shift the burden of proof: it is for the prosecution to prove the facts beyond all reasonable doubt.

How to act if this reform affects you

If you are being investigated, have already been charged, or act for the prosecution in a matter involving a minor, it is advisable to act as soon as possible. Strategy is decided in the early stages of the proceedings: pre-recorded evidence may be taken very early, and the opportunity to take part in and challenge the minor's testimony is concentrated at that moment. Waiting for the trial may be too late.

You can read more about this and other amendments in our criminal law reforms section, consult the provisions in the annotated Penal Code, or learn how we approach criminal defence in this type of matter. You will find further analysis of legislative and procedural developments on the firm's blog.