Street Sexual Harassment: Is It an Offence in Spain? Criminal Analysis 2026

Street sexual harassment generates legal debate. As criminal lawyers, we analyse the degrees, how they are classified and the lines of defence when someone faces an accusation of this kind.

Classification by Degree

One widespread misconception should be cleared up first: since LO 10/2022 the Spanish Criminal Code does contain a provision designed for sexual harassment in public places, the minor offence of the second paragraph of Article 173.4 CP. Above that threshold, and depending on their seriousness, these forms of conduct still fall under the pre-existing offences. The scale, from least to most serious, runs as follows:

• An isolated comment that does not humiliate: not an offence. Criminal law does not punish rudeness or bad manners; a comment that does not create for the victim an objectively humiliating, hostile or intimidating situation falls outside the criminal sphere.
• A sexual expression that is objectively humiliating: the minor offence of Art. 173.4, second paragraph, CP, with no need for repetition.
• Degrading comments: may amount to insult where the expressions injure the person's dignity. The seriousness of the words and the context in which they are uttered are decisive.
• Following someone: stalking under Art. 172 ter (3 months-2 years). This offence requires persistent and repeated conduct that seriously disrupts the victim's daily life: following them, watching them or repeatedly seeking contact against their will.
• Indecent exposure: Art. 185 (6 months-1 year), for acts of obscene exhibition in the situations covered by the provision itself.
• Touching: sexual assault under Art. 178 (1-4 years). Non-consensual physical contact of a sexual nature marks the qualitative leap: it stops being a matter of annoyance or offence and becomes an attack on sexual freedom.

The Minor Offence under Article 173.4 CP

Organic Law 10/2022 of 6 September on the comprehensive guarantee of sexual freedom inserted into the second paragraph of Article 173.4 of the Spanish Criminal Code an offence designed precisely for these situations. It punishes those who address another person with expressions, conduct or propositions of a sexual nature that create for the victim an objectively humiliating, hostile or intimidating situation, provided the facts do not amount to another, more serious offence. It is a minor offence, punished with a permanent location order of five to thirty days — which must be served at an address different from and away from the victim's — community service of five to thirty days, or a fine of one to four months, the last of these only where the circumstances of Article 84.2 CP are present.

Two features set this offence apart from the stalking offence of Article 172 ter CP and explain why its arrival changes how these cases are analysed. The first is that it does not require repetition: a single episode may suffice if it creates the situation described, whereas Article 172 ter demands persistent and repeated conduct that disrupts the normal course of the victim's daily life. The second is that the test is objective — the statute speaks of a situation that is "objectively" humiliating, hostile or intimidating — so neither the mere subjective discomfort of the person receiving the comment is enough on its own, nor does an intention declared to be flattering by the speaker rule the offence out. The provision also closes with an express subsidiarity clause: where the facts amount to sexual assault under Article 178 CP, indecent exposure under Article 185 CP or stalking under Article 172 ter CP, those offences apply and not the minor one.

Article 173.4 CP adds a prosecution requirement worth bearing in mind: these offences are prosecutable only upon a complaint by the aggrieved person or their legal representative. Without that complaint there can be no proceedings. And because it is a minor offence, the limitation period is one year under Article 131.1 CP, against the five years applicable to the stalking offence of Article 172 ter — a decisive difference where old facts are reported, and a reason to pin down the date of each episode with precision.

The practical consequence runs both ways. For a complainant, there is now a criminal route for conduct previously channelled into administrative sanctions. For a person reported, classification as a minor offence means a swift procedure and non-custodial penalties, but also a criminal record if a conviction follows, which is reason enough not to treat it as a mere formality.

Where the Criminal Threshold Lies

Above the threshold of Article 173.4 CP, the central question is always the same: which of the above offences —if any— does the specific conduct fit into? To draw that line, the courts look at criteria such as repetition (an isolated episode versus a sustained pattern), the intensity of the behaviour, the content of the expressions or acts, the presence or absence of physical contact and the actual effect on the life of the person concerned. The same word or gesture can be criminally irrelevant in one context and relevant in another, which is why every case demands an individualised analysis of the proven facts.

Indicative scale of penalties

By way of illustration, and always depending on the facts that are found proven, each type of conduct sits within a different penalty framework: non-consensual touching of a sexual nature may fall under sexual assault in Art. 178 CP, carrying a prison sentence of 1 to 4 years; persistent and repeated following or watching may fall under stalking in Art. 172 ter CP, punishable by 3 months to 2 years; an expression of a sexual nature that creates an objectively humiliating, hostile or intimidating situation is the minor offence of Art. 173.4, second paragraph, CP, carrying a permanent location order or community service of 5 to 30 days, or a fine of 1 to 4 months; and a comment that produces no such effect and has no degrading content usually falls outside any criminal offence.

These hypothetical situations illustrate the indicative statutory scale: the greater the intensity of the conduct —from an isolated comment to non-consensual physical contact— the wider the applicable penalty framework. It should be remembered that these are general statutory ranges, not guaranteed outcomes: the classification and the sentence always depend on whether the proven facts match a specific criminal offence.

Defence

Against an accusation of this kind, the usual lines of defence are three:

• No offence in law: this is the first filter. If the expression does not create an objectively humiliating, hostile or intimidating situation within the meaning of Art. 173.4, second paragraph, CP and does not reach the seriousness required by any other offence —for lack of repetition, of degrading content or of contact— there is no crime, however socially reproachable the behaviour may seem.
• Mistaken identification: these incidents happen in public places, often in seconds, between strangers and with little more evidence than a fleeting identification. The reliability of the identification of the accused is a critical point the defence must subject to rigorous scrutiny.
• A misinterpreted context: the complainant's subjective perception is not enough to convict; the objective elements of the offence must be present. Reconstructing the full context —what exactly was said or done, in what circumstances and before which witnesses— can completely change the legal classification.

In every case, early involvement of a lawyer makes it possible to fix the account of the facts, identify witnesses and prepare the strategy before the first statement.