Anti-Harassment Protocol & Compliance Lawyer
Defense of the employer against criminal omission liability for failing to implement the mandatory anti-harassment protocol.
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The Mandatory Anti-Harassment Protocol
Since Organic Law 3/2007 on the effective equality of women and men, reinforced by Organic Law 10/2022 and Law 15/2022, every Spanish company must implement protocols to prevent and act against sexual harassment and harassment on grounds of sex. The absence or insufficiency of the protocol can generate criminal liability for the employer by commission by omission, plus administrative sanctions and serious labour consequences.
Article 48 of LO 3/2007 requires companies to promote working conditions that prevent harassment, to set up specific procedures for prevention and for channelling complaints, and to negotiate concrete measures (codes of conduct, training, awareness campaigns). A minimum protocol must include precise definitions, a zero-tolerance statement, a confidential internal reporting channel (aligned with Law 2/2023), an investigation procedure with safeguards, precautionary measures, an internal sanctioning regime, mandatory training and protection against retaliation.
Employer Liability by Omission
Where an employee commits sexual harassment and the company had no protocol or did not apply it correctly, the employer or directors may be investigated for commission by omission under Article 11 CP. The requirements are a position of guarantor derived from the legal and contractual duty to prevent harassment, an effective capacity to act, actual or required knowledge of the risk, and an omission equivalent to the positive act.
Legal-Person Liability and Compliance
Article 31 bis CP allows the criminal liability of the legal person for offences committed on its behalf. An adequate criminal-prevention model, integrating the anti-harassment protocol, can operate as an exemption or mitigation. The protocol must be properly dovetailed with the company's criminal-compliance model.
Defense Strategy
- Proving the protocol exists and was effectively applied to the specific case.
- Diligence in the internal investigation and immediate precautionary measures on becoming aware of the facts.
- Integration of the protocol into the company's criminal-compliance model.
Penalty Chart
| Type / Scenario | Criminal Penalty |
|---|---|
| Criminal | Possible liability by commission by omission (Art. 11 CP) as a participant. |
| Administrative | LISOS fines (RDL 5/2000), reaching the very-serious-infringement bracket. |
| Labour | Null dismissal + enhanced compensation where the victim was retaliated against. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Sexual Offenses and Gender Violence in Spain: Legal Defense Guide
Sexual offenses in Spain are governed by Art. 178-194 of the Criminal Code, significantly reformed by Organic Law 10/2022 (the "Only Yes Means Yes" law) and its subsequent correction by LO 4/2023. Gender violence offenses — one of Spain's most prosecuted areas — are found in Art. 153-173 CP, with special aggravated penalties when the victim is an intimate partner.
Penalty Table: Sexual Offenses (Post-2023 Reform)
| Offense | Article | Penalty |
|---|---|---|
| Sexual assault (basic) | Art. 178 | 1 – 4 years |
| Sexual assault with penetration | Art. 179 | 4 – 12 years |
| Aggravated sexual assault | Art. 180 | 7 – 15 years |
| Child sexual abuse (under 16) | Art. 183 | 2 – 15 years |
| Child pornography (holding) | Art. 189.5 | 3 months – 1 year |
| Gender violence (minor assault) | Art. 153.1 | 6 months – 1 year |
| Stalking / Harassment | Art. 172 ter | 3 months – 2 years |
Critical Defense Strategies
Consent Analysis (Only Yes Means Yes)
Post-reform, consent must be explicit and ongoing. Defense focuses on context, prior relationship history, and how withdrawal of consent was expressed.
False Allegations Defense
False accusations are frequent in custody disputes. Challenge credibility with inconsistencies between statements, phone/message evidence, and expert psychological assessment.
Digital Evidence Review
WhatsApp messages, social media interactions, and digital footprint often contradict prosecution narratives. Comprehensive digital forensics analysis is essential.
Challenging the Expertise Reports
Psychological victim assessments used in court are frequently challenged on methodological grounds. Expert counter-reports are a cornerstone of defense.
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