Abuse of a Position of Superiority or Authority: What Spanish Criminal Law Punishes Today

One of the least understood consequences of the reform of sexual offences is that "sexual abuse" no longer exists as a separate criminal category. Anyone searching for information on "sexual abuse by abuse of authority" is looking at a repealed concept: LO 10/2022, known as the "only yes means yes" law, and its later adjustment by LO 4/2023, merged the former abuses and assaults into a single offence of sexual assault. As criminal lawyers who handle the defence in sexual assault cases involving abuse of authority, in this guide we explain how the exploitation of a position of authority is framed today, what penalties it carries and the lines from which the defence is built.

"Sexual Abuse" Is No Longer a Stand-Alone Offence

Before the reform, the Criminal Code distinguished between sexual assault (where there was violence or intimidation) and sexual abuse (where there was none, but consent was absent or vitiated, for example by prevalence). That distinction disappeared. The current Art. 178 CP defines sexual assault as any act against another person's sexual freedom carried out without their consent, and specifies that there is consent only where it is freely expressed through acts that clearly convey the person's will.

Art. 178 itself treats as sexual assault in all cases sexual acts carried out by "abusing a situation of superiority or of vulnerability of the victim". In other words, what used to be called abuse by prevalence is now punished as a form of sexual assault, not as a lesser or different offence. For this reason, in this area it is incorrect to speak of "sexual abuse by prevalence" as a current offence: the wrongdoing is channelled through the sexual assault offence of Art. 178 CP.

What Abuse of Authority (Prevalence) Is and Where It Arises

Prevalence means exploiting a position of superiority that constrains the other person's freedom. It does not require violence or intimidation: what matters is the imbalance of power that conditions the capacity to consent freely. That relationship of superiority typically arises in hierarchical or dependency settings:

• Teaching: a teacher or tutor in relation to a pupil.
• Healthcare: a professional in relation to a patient, particularly exploiting examinations or the relationship of trust.
• Sport: a coach in relation to an athlete, with particular gravity where minors are involved.
• Institutional: an officer or person in charge in relation to someone under their care.
• Employment and analogous settings: relationships of hierarchical, spiritual or any other kind of superiority that generate dependency.

The common element is a relationship of power that the prosecution presents as decisive for consent. That said, not every relationship between people of different rank is, by definition, vitiated: the legally delicate question is whether that superiority genuinely existed and whether it was decisive in the specific case.

Penalties: Sexual Assault and the Aggravation for Superiority

The penalty depends on the specific framing of the facts, which is always a question of fact:

• Basic offence (Art. 178.1 CP): sexual assault punishable by one to four years' imprisonment. The provision itself allows, in cases of lesser gravity and where there is no violence, intimidation, annulment of the will, or the circumstances of Art. 180, the penalty to be set in its lower half or, alternatively, a fine.
• Aggravation for prevalence of superiority (Art. 180 CP): where, in committing the offence, the perpetrator exploited a relationship of superiority over the victim, the penalty rises in line with the scale of Art. 180. Where two or more of its circumstances apply, the penalties are imposed in their upper half.
• Disqualification where an authority or public officer is involved: Art. 180 CP provides, where the offender exploited their status as an authority, an agent of that authority or a public officer, an additional penalty of absolute disqualification of six to twelve years.

Beyond imprisonment and disqualification, these offences carry far-reaching ancillary consequences: entry in the Central Register of Sex Offenders and, with it, a prohibition on carrying out activities involving regular contact with minors. Given the professional and personal impact, the precise classification of the facts is decisive.

The Public Officer's Case: Art. 443 CP

Alongside sexual assault, the Criminal Code contains a specific offence for the abuse of public office for a sexual purpose. Art. 443 CP punishes the authority or public officer who sexually solicits a person who has matters pending before them for resolution, or on which they must report or refer a query. The penalty is one to two years' imprisonment and absolute disqualification of six to twelve years.

The provision aggravates the response where the request comes from an officer of a prison or of a centre for the protection, reform, internment or custody of persons in relation to someone under their charge: in that case the penalty is one to four years' imprisonment and absolute disqualification of six to twelve years. The hallmark of Art. 443 is that it punishes the solicitation itself, on account of the abuse of the position of power it entails, regardless of whether any sexual act actually takes place; where such an act does occur without consent, the offence of sexual assault may also come into play.

The Boundary with Sexual Harassment (Art. 184 CP)

Not all improper sexual conduct in a context of superiority is sexual assault. Art. 184 CP defines sexual harassment: soliciting favours of a sexual nature within an employment, teaching or service relationship, thereby creating an objectively and seriously intimidating, hostile or humiliating situation for the victim. The basic offence is punishable by six to twelve months' imprisonment or a fine, and is aggravated (one to two years' imprisonment) where the offender exploits a situation of employment, teaching or hierarchical superiority, or over a person under their guardianship or custody. The essential difference from sexual assault is that harassment punishes the solicitation and the climate created, whereas assault requires a non-consented sexual act. Drawing the line correctly between the two is one of the first tasks of the defence.

Lines of Defence

Consistently with the presumption of innocence, the defence against a charge of this kind is usually organised around several strands:

• Existence of free consent: showing, where the facts permit, that there was a genuine relationship between equals not conditioned by the position held.
• Absence of real prevalence: demonstrating that the relationship of authority was formal but did not create effective dependency or constrain freedom in the specific context.
• Voluntariness shown over time: reconstructing the real dynamics of the relationship through communications, witness evidence and any other available proof.
• Critical analysis of the evidence: rigorous assessment of the complainant's statement, of the relationship of authority alleged and, where relevant, of psychological expert evidence, as well as of possible errors of identification or of legal classification.

Because of the serious professional and reputational impact of a charge of this kind, the early involvement of a lawyer is decisive: it makes it possible to set out the account of events, identify and preserve the evidence and prepare the strategy before the first statement. We work to ensure that the criminal response is confined strictly to what the proven facts will support.