Partner Sexual Assault Lawyer (Art. 180.1 CP)
Criminal defense against charges of sexual assault within a partner or ex-partner relationship: gender violence and sexual assault combined.
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Partner Sexual Assault: Legal Framework
Sexual assault within a partner relationship combines two distinct but converging frameworks: Organic Law 1/2004 on comprehensive protection measures against gender violence and the Criminal Code provisions on offences against sexual freedom (Arts. 178 et seq. CP, reformed by LO 10/2022). This intersection produces procedural, penological and evidential particularities that demand defense expertise in both fields.
LO 10/2022 removed the distinction between sexual aggression and abuse and unified all non-consented sexual conduct under sexual assault (Article 178 CP). Consent is the core element: it is understood to exist only when freely manifested through outward, conclusive and unequivocal acts in the circumstances. The basic conduct carries 1 to 4 years' imprisonment; the aggravated subtypes raise the penalty considerably.
Partnership as an Aggravating Circumstance
Article 180.1.4ª CP makes it a specific aggravation that the victim is or has been the spouse or a person bound to the author by an analogous emotional relationship, even without cohabitation. The aggravation applies to current partners and ex-partners alike and raises the penalty to its upper half. For acts with penetration (Art. 179 CP, 4-12 years), the penalty is set at 8 to 12 years.
Jurisdiction of the Courts on Violence Against Women
Under Article 87 ter LOPJ, the Courts on Violence Against Women have exclusive jurisdiction to investigate offences against sexual freedom committed against a person who is or has been the author's spouse or partner. Trial falls to the Criminal Court or the Provincial Court depending on the penalties. The defense must align with the specific procedural rules of this specialised jurisdiction.
Precautionary Measures
These proceedings frequently involve precautionary measures: a protection order under Article 544 ter LECrim, a restraining order, a no-contact order, removal from the family home, suspension of visiting arrangements, and even pre-trial detention in particularly serious cases. The defense must act quickly to oppose, modify or replace disproportionate measures.
Defense Strategy
- Consent under the new framework and analysis of the relationship dynamics.
- Contradictions between statements made in parallel proceedings (gender violence, divorce, custody).
- Spurious motive where the complaint arises in the context of a conflictive separation.
- Defense against disproportionate precautionary measures and assessment of mitigating factors.
Penalty Chart
| Type / Scenario | Criminal Penalty |
|---|---|
| Partner aggravation | Art. 180.1.4ª CP: penalty in its upper half. With penetration: 8-12 years. |
| Gender violence | Frequent precautionary measures: restraining order, GPS tag, no-contact order. |
| Concurrence | Possible concurrence with habitual abuse (Art. 173.2 CP). |
* 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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