Criminal Defence for Sexual Harassment by Abuse of Superiority (Art. 184.2 CP)

Sexual Harassment by Abuse of Superiority: Art. 184.2 CP

Sexual harassment by abuse of superiority, in Article 184.2 of the Spanish Criminal Code, is an aggravated subtype of the harassment in Article 184.1 CP, arising where the author exploits a position of employment, teaching, hierarchical or analogous superiority to request sexual favours. The penalty rises to 5 to 7 months' imprisonment or a fine of 10 to 14 months, plus disqualification, because the power imbalance reduces the victim's real capacity to refuse.

Article 184.3 CP sets the penalty in its upper half where the victim is especially vulnerable by reason of age, illness, disability or situation. Conviction also entails special disqualification and is usually accompanied by a restraining or no-contact order.

The Concept of Abuse of Superiority

Abuse of superiority consists of the conscious exploitation of a position of power over the victim that reduces their freedom of decision. It does not require an express threat: it is enough that the author's power effectively influences the victim's ability to refuse. Case law has clarified that merely being a hierarchical superior does not automatically amount to it; there must be an effective impact on freedom of decision. Typical settings include manager–subordinate, teacher–student, doctor–patient, coach–athlete and tutor–trainee relationships.

Boundary with Sexual Assault

It is essential to distinguish harassment (Art. 184.2 CP) from sexual assault by prevalence (Art. 178 CP). Harassment punishes the request for sexual favours that generates a hostile environment; sexual assault punishes carrying out sexual acts without consent or with consent vitiated by prevalence. The penalties differ sharply, so the defense must work the boundary between the two with precision.

Legal-Person Liability

Sexual harassment in an employment or service setting may have consequences for the company. Corporate criminal liability (Art. 31 bis CP) can extend to the company where the offence is committed for its benefit, unless it proves it had an adequate prevention model in place. LO 10/2022 and Law 15/2022 have reinforced the employer's duties of prevention and internal investigation.

Defense Strategy

1. Absence of abuse of superiority: a relationship of functional equality with no real impact.
2. Prior consented relationship evidenced documentarily.
3. Classification: discussing the boundary between harassment and sexual assault.
4. Challenge to digital evidence and assessment of mitigating factors.

Procedure and competent court: where and how the case is handled

The procedural route depends on the penalty the law attaches to the conduct. Sexual harassment with prevalimiento under Article 184.2 CP, punishable by one to two years' imprisonment plus special disqualification for eighteen to twenty-four months, and the basic offence of 184.1 (six to twelve months' imprisonment or a fine) are tried by the Criminal Court (Juzgado de lo Penal), which hears offences carrying up to five years. Where the facts are reclassified as sexual assault with carnal access under Article 179, whose penalty exceeds that threshold, the trial falls to the Provincial Court (Audiencia Provincial). The investigation is led by the Investigating Court of the place where the offence occurred.

There is a special rule of attribution: if the accused is or has been the spouse, partner or former partner of the complainant, the investigation is conducted by the Court for Violence against Women (Article 87 ter LOPJ). This delimitation is no minor technicality, because from day one it governs the regime of precautionary measures, the time limits and the very strategy of the defence. An ill-fitting initial classification, whether by excess or by default, can carry consequences for safeguards and penalty alike, so confirming the correct categorisation and the court called to hear the case is one of the first technical tasks of legal assistance.

The consent framework after LO 10/2022 and chemical submission

LO 10/2022, later adjusted by LO 4/2023, merged the former abuse and assault into a single offence of sexual assault built on the absence of consent. Article 178 CP holds that consent exists only when it is freely expressed through acts which, in light of the circumstances, clearly convey the person's will. The basic offence of 178.1 carries one to four years' imprisonment; 178.3, where there is violence or intimidation or particular degradation, raises the range to one to five years, and carnal access under Article 179 takes the penalty into the band proper to rape.

So-called chemical submission fits within this scheme. Article 178.2 treats as sexual assault acts carried out on a person who is unconscious or whose will is annulled by any cause, which covers situations in which the victim could not consent owing to the effect of substances. Where, in addition, the perpetrator annuls the will through the use of drugs, narcotics or any suitable substance, the aggravating circumstance of Article 180.1.7 applies, shifting the penalty to its upper half or to the aggravated bands. Drawing a rigorous line between the lack of consent and the aggravation for administering substances is decisive for both classification and evidence.

Evidence: corroborated testimony, forensic, toxicological and digital

In this field the complainant's testimony may sustain a conviction, but case law requires it to be assessed by criteria of credibility, consistency over time and, very particularly, that it be accompanied by peripheral corroboration: objective facts external to the testimony itself that reinforce it. The defence examines in detail the internal coherence, the absence of ulterior motives and the consistency with the rest of the evidence, which does not mean gratuitously questioning the victim but applying the technical demands of a trial with full safeguards.

The body of evidence is usually completed with expert reports. The forensic medical report documents injuries, traces and the person's condition; in cases of suspected chemical submission, toxicological analysis is time-dependent and its value hinges on the chain of custody and the speed of sampling. Where the harassment unfolds in digital or workplace settings, messages, logs and metadata require proper preservation and authentication. Any flaw in obtaining or preserving these sources may affect their lawfulness and effectiveness, an area in which technical assistance proves decisive.

Special prescription under 132.1, supervised release and plea agreement

The general limitation periods of Article 131 CP are graduated according to the maximum penalty of the offence in bands of five, ten, fifteen and twenty years. For sexual offences committed against minors, a special rule under Article 132.1 applies: the period does not begin to run until the victim turns thirty-five, or from their death if it occurs earlier. This provision, introduced with the 2021 reform, substantially extends the window during which the facts may be prosecuted, and its correct calculation is a technical question of the first order.

Beyond the prison term, certain convictions for offences against sexual freedom entail the imposition of supervised release (libertad vigilada) under Article 192 CP, as well as entry in the Central Register of Sexual Offenders, with the restrictions this carries for certain activities. The defence strategy also weighs the modifying circumstances, the possible reparation of harm and, where appropriate, a plea agreement (conformidad) that calibrates the criminal response. It is also worth distinguishing this offence from neighbouring figures and from the purely labour or administrative plane, where the conduct may carry its own consequences without necessarily satisfying the criminal offence.