Criminal Lawyers in Sexual Assault

Sexual aggression, typified in Arts. 178 to 180 of the Spanish Criminal Code after the reform operated by Organic Law 10/2022 of 6 September, of integral guarantee of sexual freedom and the subsequent Organic Law 4/2023, protects the fundamental legal interest of the person's sexual freedom. The current legal paradigm, known as "Only Yes is Yes", builds the criminal type on the absence of free and affirmative consent of the victim, dispensing with the traditional requirement of violence or intimidation as an autonomous typical element. The most recent Supreme Court case-law has consolidated that consent must be manifested through acts that express clearly the person's will: silence, passivity or lack of opposition do not constitute valid consent.

Art. 178 CP defines the basic type of sexual aggression as any act against another person's sexual freedom without their consent, understood as that freely manifested through acts that clearly express the will. Art. 179 CP configures the aggravated subtype of rape, consummated when sexual aggression consists of carnal access through vaginal, anal or oral path, or introduction of bodily members or objects through the first two paths. Art. 180 CP contemplates a catalogue of aggravating circumstances that raise the penalty: joint action of two or more persons, extremely serious violence or degrading or humiliating acts, special vulnerability of the victim (age, illness, disability, situation), relationship of superiority or kinship, use of weapons or dangerous means and the realization of the conduct by nullifying the victim's will with drugs or substances (chemical submission).

The foreseen penalties are among the most serious in the Criminal Code. The basic type of Art. 178 CP carries prison from one to four years. The rape of Art. 179 CP is sanctioned with prison from four to twelve years. When specific aggravating factors of Art. 180 concur, the penalty becomes two to eight years' prison without penetration and seven to fifteen with it (five to ten and twelve to fifteen where there was violence or intimidation), imposed in its upper half if two or more concur, potentially reaching fifteen years of prison in especially serious scenarios such as group aggressions with weapons use. To the custodial sentence are added very serious accessory consequences: the automatic registration in the Central Registry of Sexual Offenders and Trafficking of Human Beings (Royal Decree 1110/2015), with the consequent disqualification for professions or occupations involving regular contact with minors; the postpenitentiary supervised release of Art. 192 CP, from five to ten years if the offence is serious and from one to five if it is less serious; and the civil liability for moral damages and psychological sequelae, which can be very high.

The technical defence in sexual aggressions requires the highest level of specialization and is articulated on four axes consolidated by jurisprudence. First, the error of type of Art. 14 CP: when the accused, attending to externalized acts of the victim or to the relational context, reasonably believed that consent existed, intent and, with it, subjective typicality are excluded. Second, the credibility expert opinion through forensic psychologists, examining the accusatory testimony by applying the parameters of subjective incredibility, verisimilitude, persistence in incrimination and absence of spurious motives, in accordance with the consolidated doctrine of the Supreme Court. Third, the digital reconstruction of the context: the expert recovery of WhatsApp messages, audios, social media and geolocation can accredit the existence of communication prior and subsequent to the act that evidences consent or, at least, reasonably substantiates the accused's belief in it. Fourth, the questioning of DNA evidence: the presence of genetic material accredits physical contact, but never the absence of consent, with the biological imprint having to be integrated into a coherent exculpatory version.

In current forensic practice, sexual aggression cases are the criminal proceedings of greatest technical complexity and media exposure of the system. The application of the new consent paradigm has generated a rich and evolving jurisprudence, where Provincial Courts are consolidating criteria on the proof of consent, the assessment of psychological expert opinion and the application of error of type. The procedural consequences for the investigated party can be devastating from the investigation phase: precautionary measures such as provisional prison, restraining orders, preventive professional suspension and irreversible reputational damage. At Alonso Sala, with over fifteen years of experience in offences against sexual freedom, we articulate a top-level technical defence from the moment of the first summons: legal assistance at the police station controlling pre-procedural evidence, articulation of psychological and documentoscopic expert opinions, preservation of exculpatory digital evidence and design of procedural strategies oriented to acquittal, dismissal or, where applicable, maximum mitigation of the penalty.