Criminal Lawyers in Sexual Harassment

Sexual harassment, typified in Art. 184 of the Spanish Criminal Code, protects a plural bundle of legal interests: the sexual freedom, the personal indemnity and the moral integrity of the victim, as well as the right to perform professional, teaching or service activity in an environment free of sexual pressures. Consolidated Supreme Court case-law has clarified that the criminal type requires an express or unequivocal request for favours of a sexual nature that causes in the victim an objectively and seriously intimidating, hostile or humiliating situation, marking a clear boundary with mere labour conflict or socially reprehensible but not typically criminal behaviour.

The criminal type contemplates several differentiated modalities. The basic modality of Art. 184.1 CP sanctions whoever requests sexual favours in the context of a labour, teaching or service relationship, causing an objectively intimidating, hostile or humiliating situation. The modality aggravated by abuse of superiority of Art. 184.2 CP raises the penalty when the harassment is committed by a person who exploits a situation of labour, teaching or hierarchical superiority (boss, teacher, supervisor), or acts against someone in their care or custody, or expressly or tacitly announces harm connected to the victim's legitimate expectations in that field. The modality aggravated by the place of commission of Art. 184.3 CP applies to acts committed in child protection or reform centres, immigration detention centres or any other centre of detention, custody or shelter. The modality qualified by special vulnerability of Art. 184.4 CP imposes the penalty in its upper half when the victim is in a situation of special vulnerability due to age, illness or disability. And environmental harassment, although not expressly contained in the type, has been recognized by case law when the reiteration of conducts creates an objectively hostile environment despite no express request concurring.

The foreseen penalties, although not located in the highest tier of the catalogue of sexual offences, generate disproportionately serious consequences for the professional trajectory. The basic modality of Art. 184.1 carries prison from six to twelve months or fine from ten to fifteen months. The modality aggravated by abuse of superiority of Art. 184.2 rises to prison from one to two years, and the same range applies to Art. 184.3 (acts committed in child protection or reform centres, immigration detention centres or centres of detention, custody or shelter). Where the victim's special vulnerability by reason of age, illness or disability concurs, Art. 184.4 imposes the corresponding penalty in its upper half. Every modality also carries special disqualification from the profession, trade or activity (twelve to fifteen months for the basic offence and eighteen to twenty-four months for the aggravated ones). To the custodial sentences are added devastating professional consequences: professional disqualification of Art. 56 CP when the conviction provides for it; valid disciplinary dismissal with loss of severance pay; loss of professional licenses and registrations; registration in criminal record with serious reputational damage; and subsidiary civil liability of the employing company when it has not implemented the mandatory anti-harassment protocol of Art. 48 of Organic Law 3/2007.

The technical defense is articulated on four axes consolidated by minor jurisprudence. First, the criminal atypicality: jurisprudence requires objective gravity in the intimidating, hostile or humiliating situation; socially reprehensible but minor behaviours (isolated joke, inadequate compliment, non-insistent social invitation) do not reach the typical threshold and must be resolved in the administrative, disciplinary or labour sphere. Second, the digital contextualization: the expert reconstruction of the complete history of WhatsApp messages, corporate emails and internal communications usually accredits previous affective or sexual reciprocity, neutralizing the "hostile" character required by the criminal type. Third, the deactivation of prevalence: when hierarchical superiority was not effectively exploited or when no harm linked to the victim's professional expectations was announced, the aggravating factor of Art. 184.2 falls, reducing the penalty to the basic type. Fourth, the identification of instrumental complaint: jurisprudence admits, within the analysis of accusatory testimony credibility, the assessment of spurious motives when the complaint surprisingly arises after an ERE, a negative evaluation, a dismissal or a previous labour conflict.

In current forensic practice we observe an exponential growth of sexual harassment proceedings in the labour sphere, driven by the widespread implementation of anti-harassment protocols, internal complaint channels (whistleblowing) and greater social awareness. Provincial Courts are consolidating criteria on the boundary between the criminal type and the labour infringement, increasingly rigorously requiring proof of the objective gravity of the situation. The procedural consequences for the investigated party, particularly when dealing with executives, middle managers or professionals with public responsibility, are devastating: precautionary suspension of functions, forced transfer, loss of corporate trust and media exposure. At Alonso Sala, with over fifteen years of experience in offences against sexual freedom and in corporate criminal law, we articulate a specialized defense in corporate environments: expert reconstruction of digital communications, audit of anti-harassment protocols, comprehensive advice on reputational crisis management and design of procedural strategies oriented to acquittal, dismissal or maximum mitigation of professional consequences.