Sexual Abuse Allegations — now Sexual Assault (Art. 178 CP)

The Organic Law 10/2022 on integral guarantee of sexual freedom (known as the "Only Yes is Yes" Law) and the subsequent Organic Law 4/2023 have radically transformed the criminal-legal regime of sexual offences in Spain. The classical distinction between sexual abuse (without violence or intimidation, former Art. 181 CP) and sexual assault (with violence or intimidation, former Art. 178 CP) has disappeared: now all sexual acts without consent are unified under the single type of "sexual assault" of Art. 178 CP, configured around the central concept of free, clearly expressed and revocable consent. Consolidated Supreme Court case-law has clarified the interpretative criteria of consent, but the material concept of "abuse" persists in practice: the absence of violence or intimidation remains a modulating factor of the penalty within the unified type.

Material Forms

The material modalities of the former "sexual abuse" now integrated in the unified type of Art. 178 CP are three main ones. The exploitation of the victim's unconsciousness covers sexual acts performed on a person deprived of sense by advanced intoxication, drug consumption, medical sedation, deep sleep or transient mental disorder; the victim cannot form valid consent and the sexual access integrates sexual assault even without physical violence. The abuse of superiority (prevailing situation or hierarchical relationship) operates when the perpetrator obtains sexual acts by prevailing over a power relationship: boss over employee, teacher over student, doctor over patient, officer over subordinate, priest over faithful; the power asymmetry vitiates consent. The deception of persons with limited discernment between 16 and 18 years (former Art. 182 CP) no longer has an offence of its own after LO 10/2022: deception can only amount to assault where it annuls consent to the sexual act itself (identity impersonation, simulated medical treatment). Supreme Court case-law clarifies the contours of each modality.

Penalties (LO 10/2022)

The penalties after unification are graduated according to circumstances of the act. The basic type of sexual assault without penetration (Art. 178.1 CP, what was classically called "simple abuse") carries 1 to 4 years of prison; with specific aggravating factors of Art. 180 CP (special vulnerability of victim, joint action of two or more persons, special degradation), 2 to 8 years. Sexual assault with penetration (Art. 179 CP, former rape or "abuse with penetration") is punished with 4 to 12 years of prison; with aggravating factors, 7 to 15 years. The mitigated subtype of Art. 178.4 CP allows the court to impose the lower half of the prison term or a fine of 18 to 24 months on account of the lesser gravity of the act, provided there is no violence or intimidation and no circumstance of Art. 180 CP. The accessory consequences are devastating: registration in the Central Sex Offenders Registry (RD 1110/2015), cancelled under the criminal-record rules if the victim was an adult and 30 years after the sentence is served if the victim was a minor, disqualification to work with minors, 5 to 10 years' supervised release (1 to 5 for less serious offences), prohibition of approach to the victim and civil liability for moral damage, set by the court (the Act 35/2015 compensation schedule is only a guide).

Defence Strategy

Technical defence is built on four axes. First, the invincible error of type (Art. 14 CP) due to reasonable and founded belief of consent existence: when the accused, based on previous behaviour, words, conclusive acts and relational context, in good faith believed there was consent, typical intent is excluded; the indispensable requirement is that the belief be objectively reasonable in light of circumstances. Second, the psychological credibility expert evidence: application of CBCA (Criteria-Based Content Analysis) and SVA (Statement Validity Analysis) protocols by qualified forensic psychologists analysing internal consistency of testimony, presence of sensory details, reality versus invention criteria, spurious motives. Third, the challenge of the aggravated modality: prevailing requires proving effective hierarchical relationship and abuse of it, the mere professional link does not suffice; unconsciousness requires expert evidence on the degree of impact on volitional capacity; joint action requires proving plurality of perpetrators and their prior agreement. Fourth, the exhaustive digital forensic extraction: WhatsApp, Instagram, Telegram, photos with EXIF metadata, GPS geolocation, hotel and transport records; a cordial or affectionate message after the encounter can destroy the assault narrative.

Current Forensic Practice

In current forensic practice, sexual assault proceedings in their non-violent modality (former abuse) have increased significantly after the reforms of LO 10/2022 and LO 4/2023, which have expanded the typical catalogue under the consent principle. Organic Law 1/2025 on Justice Service Efficiency, constitutional case-law on presumption of innocence and settled Supreme Court doctrine on the three guiding parameters for assessing the victim's statement (absence of subjective unreliability, plausibility, persistence) configure a complex procedural scenario demanding specialized technical defence. At Alonso Sala, our criminal lawyers specialized in sexual offences coordinate multidisciplinary teams with qualified forensic psychologists, computer experts for electronic communications analysis, and family law specialists when the accusation is instrumentalized in custody or separation disputes. The intervention must be immediate from legal assistance to the detained to guarantee the exercise of the right not to testify, articulate defence with prepared expert evidence and avoid premature statements that compromise procedural strategy.