Criminal Lawyers for Sexual Assault on Minors

Sexual offenses against minors are among the most severely punished crimes in the Spanish Criminal Code. Since the 2015 reform, the age of sexual consent in Spain is 16 years. Any sexual act with a person under 16 is automatically criminal, regardless of apparent consent. These cases carry extremely high penalties and devastating collateral consequences.

Legal Framework

Articles 181-183 bis of the Criminal Code establish a graduated penalty system: sexual acts without penetration with a minor under 16 carry 2 to 6 years imprisonment; sexual assault with penetration (rape of a minor) carries 8 to 12 years; and sexual assault of a minor aged 16-18 obtained by abusing a position of trust or superiority (teacher, coach, relative) is punished as sexual assault under Art. 178 CP. Online grooming (contacting minors through technology for sexual purposes) carries 1 to 3 years.

Defense Strategies

Our defense, conducted with absolute confidentiality, focuses on: investigating the actual age knowledge of the accused (error of type regarding the minor's age, especially in online interactions); analyzing digital evidence (chat logs, social media profiles where the minor may have misrepresented their age); requesting expert psychological evaluation of testimony credibility (minors' testimony requires specialized assessment); and challenging the forensic evidence (medical examinations, DNA, digital forensics) through counter-expertise.

The consent of a minor under 16 and the proximity exception ("Romeo and Juliet" clause)

After LO 10/2022 and LO 4/2023, the cornerstone of Chapter II bis is age: any act of a sexual nature with a minor under sixteen is, in principle, sexual assault (Article 181 of the Criminal Code), and it is irrelevant that the minor consented, because below that threshold the law presumes there is no legally valid consent. This presumption is why a minor's apparent consent does not operate as a ground for excluding liability in the ordinary terms of Article 178.

The Code provides a single avenue of exclusion: the proximity exception, now contained in Article 183 bis of the Criminal Code (the former "Romeo and Juliet" clause, relocated by the reform from the repealed 183 quater). The free consent of a minor under sixteen excludes liability when the offender is a person close to the minor in age and degree of development or maturity. There is no fixed number of years' difference: the court assesses the biological gap, each party's maturity and the absence of any relationship of superiority, dependence or undue advantage.

The exception does not operate automatically, nor does it cover situations where the circumstances of Article 178.2 are present (violence, intimidation, abuse of superiority or annulment of the will). A defence invoking Article 183 bis must objectively establish that genuine proximity, often through expert evidence on the adolescent's development. Because it is a ground of exclusion, it is a technical defence best framed from the investigation stage onward, not at trial.

Penalties in force after LO 4/2023 and aggravating circumstances

Article 181 grades the penalty according to the conduct. In the basic form (a sexual act without penetration), the penalty is two to six years' imprisonment. If one of the circumstances of Article 178.2 and 3 is present (violence, intimidation or annulment of the will), the penalty rises to five to ten years. Where the act involves carnal access by vaginal, anal or oral route, or the introduction of body parts or objects, the penalty is eight to twelve years' imprisonment, increasing to twelve to fifteen years where aggravating circumstances concur.

Specific aggravating factors raise the penalty to its upper half: joint action by two or more persons, violence of extreme seriousness or particularly degrading acts, the special vulnerability of the victim (in any case if under four years old), the offender being or having been the victim's partner, and taking advantage of a relationship of cohabitation, kinship or superiority. Chemical submission has its own treatment: Article 178.2 treats acts on a person whose will is annulled by any cause as assault, and the deliberate use of medication, drugs or substances to annul it constitutes the aggravating factor of Article 180.1.7.

On the mitigating side, Article 181.3 allows the court to impose the penalty one degree lower in light of the lesser gravity of the act and the offender's personal circumstances, with exclusions where there is violence, intimidation or a particularly vulnerable victim. The presence of general mitigating factors (reparation of harm, confession, undue delay) may affect the specific sentencing range. The exact penalty always depends on the case, so any range is indicative only.

Procedure, competent court and evidence

Objective jurisdiction is allocated by the penalty: the Criminal Court (Juzgado de lo Penal) tries offences punishable by up to five years' imprisonment, while the Provincial Court (Audiencia Provincial) hears the more serious ones (above five years, such as the carnal-access forms of Article 181.4). Where the victim is or has been the offender's partner, the investigation falls to the Court for Violence against Women (Article 87 ter of the LOPJ). The investigation is led by the Investigating Court, with the involvement of the Public Prosecutor in defence of the minor's interest.

Evidence in these proceedings demands particular rigour. The victim's testimony may support a conviction, but settled case law requires its credibility to be assessed and, where possible, corroborated by peripheral evidence: forensic medical reports, psychological expert assessment of the minor, and, in chemical submission, toxicological analyses carried out with the urgency imposed by the detection windows of the substances. In acts committed through devices or networks, digital evidence (messaging, metadata, chain of custody) is decisive.

The examination of the minor is governed by reinforced protection rules: taking the statement as pre-constituted evidence where appropriate, the assistance of specialised professionals, and measures to avoid secondary victimisation. For the defence it is essential to scrutinise the regularity of every procedural step, the chain of custody of samples and the reliability of the expert reports, because their validity conditions the outcome of the proceedings.

Limitation, supervised release, the register and associated consequences

Limitation is governed by Article 131 of the Criminal Code, which sets periods of five, ten, fifteen or twenty years according to the offence's maximum penalty (with no three-year tier). For sexual offences against minors a special counting rule applies under Article 132.1: the period does not start running from commission, but from the day the victim turns thirty-five. This rule substantially widens the window in which the facts may be prosecuted, which is of great practical relevance in delayed complaints.

Alongside the prison sentence, Article 192 imposes a supervised release measure (libertad vigilada) to be served after completion of the sentence: five to ten years if the offence is serious and one to five if it is less serious. A conviction also entails entry in the Central Register of Sex Offenders (RD 1110/2015), a confidential record kept for prolonged periods, which bars the exercise of professions and activities involving habitual contact with minors through the requirement of a negative certificate.

The process allows for avenues of reparation. Reparation of the harm and, where applicable, a guilty-plea agreement (conformidad) may be reflected in the sentence, within the legal limits and always provided they respect the minor's interest; these are not shortcuts but technical decisions assessed case by case. It is also important to delimit the boundary with neighbouring offences (Article 182, which punishes making a minor witness sexual acts, the exhibitionism of Article 185 and the sexual provocation of Article 186, or conduct in the digital sphere) and with the administrative plane of child protection, which may run in parallel with the criminal proceedings.