Street Sexual Harassment Lawyer (Art. 172 ter CP)

Street Sexual Harassment: Concept

Street sexual harassment has taken on renewed criminal relevance since Organic Law 10/2022 of 6 September on the comprehensive guarantee of sexual freedom came into force. Contrary to a widespread belief that there is no offence of its own, that reform inserted into the second paragraph of Article 173.4 CP a specific minor offence covering expressions, conduct or propositions of a sexual nature that create for the victim an objectively humiliating, hostile or intimidating situation. Alongside it, conduct occurring in public may be subsumed under more serious pre-existing offence types: the offence of harassment under Article 172 ter CP, coercion under Article 172 CP, insults under Articles 208 et seq. CP, and sexual assault under Article 178 CP where there is physical contact.

Legal Framework after LO 10/2022

LO 10/2022 profoundly reformed Title VIII of the Criminal Code on offences against sexual freedom. It removed the distinction between sexual aggression and abuse, unifying all non-consented conduct under the concept of sexual assault (Art. 178 CP) and reinforcing consent as the central element. In the field of harassment it preserved the offence under Article 172 ter CP, added the minor offence of the second paragraph of Article 173.4 CP for sexual expressions, conduct or propositions that create an objectively humiliating, hostile or intimidating situation, and toughened the general regime for sexual offences with heavier penalties and limits on suspension.

Street harassment spans a broad spectrum with very different criminal treatment: (1) isolated verbal comments (catcalling), which since LO 10/2022 amount to the minor offence of Article 173.4, second paragraph, CP where they create an objectively humiliating, hostile or intimidating situation, and otherwise remain outside the criminal sphere; (2) repeated following or persistent pursuit, which may fall under Article 172 ter CP where it seriously disrupts the victim's daily life; (3) indecent exposure in the presence of others (Art. 185 CP); (4) non-consented touching, which amounts to sexual assault under Article 178 CP; and (5) capturing intimate images in public (Art. 197.7 CP).

The Minor Offence under Article 173.4 CP Introduced by LO 10/2022

One widespread misconception should be cleared up first: since Organic Law 10/2022 there is indeed a criminal provision designed specifically for sexual harassment in public spaces. The second paragraph of Article 173.4 of the Criminal Code punishes those who address another person with expressions, conduct or propositions of a sexual nature that create for the victim an objectively humiliating, hostile or intimidating situation, provided the conduct does not amount to another, more serious offence. It is a minor offence punished with a permanent location order of five to thirty days — which must be served at an address different from and away from the victim's — community service of five to thirty days, or a fine of one to four months, the last of these only where the circumstances of Article 84.2 CP are present.

Two features distinguish it from the harassment offence of Article 172 ter CP and explain why its arrival changes how these cases are analysed. The first is that it does not require repetition: a single intervention may suffice if it creates the situation described, whereas Article 172 ter demands insistent and repeated conduct that disrupts the normal course of the victim's daily life. The second is that the test is objective — the statute speaks of a situation that is "objectively" humiliating, hostile or intimidating — so neither the mere subjective discomfort of the person on the receiving end is enough on its own, nor does an intention declared to be flattering by the speaker rule the offence out. The provision also closes with an express subsidiarity clause: where the facts amount to sexual assault under Article 178, indecent exposure under Article 185 or harassment under Article 172 ter, those offences apply and not the minor offence.

The practical consequence runs both ways. For a complainant, there is now a criminal route for conduct that was previously channelled into administrative sanctions. For a person reported, classification as a minor offence means a swift procedure with non-custodial penalties, but a criminal record if a conviction follows — which is reason enough not to treat it as a minor formality. Only the aggrieved person or their legal representative can set the machinery in motion, since Article 173.4 makes these offences prosecutable solely upon their complaint.

The Harassment Offence under Article 172 ter CP & Atypicality

The harassment offence requires repetition of the conduct (surveillance, pursuit, unwanted contact, attacks on property, misuse of personal data) and a serious disruption of the victim's daily life. Isolated conduct does not meet that offence, although it may still fall under the minor offence of Article 173.4, second paragraph, CP. The penalties are 3 months to 2 years' imprisonment or a fine, aggravated where the victim is especially vulnerable or the conduct takes place within a family or emotional relationship. Part of the conduct reported as street harassment turns out to be criminally atypical; the defence must assess whether the facts create the objectively humiliating, hostile or intimidating situation required by Article 173.4, whether they constitute one of the more serious offences or whether they amount, at most, to an administrative infringement (a fine under municipal by-laws or public-safety legislation). The boundary with the legitimate exercise of freedom of expression (Art. 20 of the Constitution) must be analysed carefully.

Defence Strategy

1. Atypicality of the conduct where the constituent elements are absent: no objectively humiliating, hostile or intimidating situation under Article 173.4 CP, and neither the repetition nor the seriousness required by the more serious offences.
2. Mistaken identification of the perpetrator where the accused was a stranger to the complainant.
3. Mistake as to the victim's will in purely social approaches, and absence of any sexual element in accidental contact.
4. Dispute over classification between the possible offence types (harassment, sexual assault, coercion, insults) and assessment of mitigating factors.

Prosecution, Procedure and Limitation

Article 173.4 CP itself provides that these offences are prosecutable only upon a complaint by the aggrieved person or their legal representative: without that complaint there can be no proceedings, and a police report on its own does not satisfy the requirement. The case is tried as a minor-offence trial, with immediate summons of the parties and a single hearing at which the evidence proposed is taken. That single hearing exhausts the evidence, which is why legal assistance matters even though the procedure is a swift one.

The limitation period is a further practical difference. Minor offences become time-barred after one year under Article 131.1 CP, against the five years applicable to the harassment offence of Article 172 ter — decisive where old facts are reported, and a reason to pin down the date of each episode with precision. None of this rules out the administrative route: certain conduct in public places continues to be sanctioned under public-safety legislation and municipal by-laws, and the two routes cannot overlap on the same facts, person and legal basis, the criminal proceedings taking precedence while they run.

Which court has jurisdiction and how the complaint is channelled

The specific conduct determines the applicable offence and, with it, the competent court. If the facts fall under the stalking offence of Article 172 ter (insistent and repeated surveillance or pursuit that seriously disrupts daily life), coercion under Article 172, or insult under Articles 208 and following, the penalty does not exceed five years and the Criminal Court (Juzgado de lo Penal) hears the case. Where there is non-consensual sexual physical contact (Article 178) or carnal access (Article 179), the classification changes: if the maximum penalty exceeds five years, as with rape, jurisdiction passes to the Provincial Court (Audiencia Provincial).

Where the parties are or have been partners, spouses, or hold an analogous emotional relationship, the investigation falls to the Violence against Women Section of the Tribunal de Instancia under Article 14.5 of the Criminal Procedure Act (LECrim). The initial classification in the complaint or police report is not final: it may change during the investigation, and the court, the procedure, and the penalties at stake all depend on it. For that reason the defence intervenes from the outset, defining the facts precisely, their legal classification, and the competent court, and preventing an accusation from being inflated towards a more serious offence than the facts can sustain.

The consent framework after LO 10/2022 and LO 4/2023

Organic Law 10/2022 merged the former abuse and aggression into a single offence of sexual aggression under Article 178, built on the absence of consent: consent exists only when freely expressed through acts that clearly convey the person's will. Organic Law 4/2023 then adjusted the penalties to strengthen the response where violence or intimidation is present, without altering the consent-based core. The basic Article 178.1 carries one to four years' imprisonment; Article 178.3, where there is violence or intimidation or the victim's will is annulled for any cause, raises this to one to five years.

Article 178.2 treats as sexual aggression acts carried out on a person who is deprived of consciousness or whose will is annulled for any cause, with no need for violence. Where there is carnal access by vaginal, anal, or oral means, or the introduction of body parts or objects, Article 179 applies: the basic form under 179.1 carries four to twelve years, and where violence or intimidation is present, 179.2 rises to six to twelve years. Within this framework, the defence focuses on the reality of consent, the reliability of how the facts are attributed, and correct classification, never on judgements about the complainant.

Evidence: testimony, objective indicators, toxicology, and the digital trail

In this field the evidence often rests on the victim's testimony, which can support a conviction when it shows persistence, an absence of ulterior motives, and, above all, corroboration by external objective data. The defence examines that corroboration rigorously: forensic medical reports, injuries or their absence, geolocation, witnesses, public-space recordings, and the temporal coherence of the account. The aim is not to attack the person, but to verify that the inferences rest on facts rather than assumptions.

In chemical-submission cases, early toxicological testing becomes decisive, because many substances are eliminated quickly; its timing, chain of custody, and expert interpretation are all reviewable. In harassment with a digital origin or that continues online, the evidence runs through messages, metadata, IP addresses, and device extractions, whose lawfulness and authenticity must be established. Any breach of fundamental rights or defect in the chain of custody may strip evidence of its effect, and that scrutiny is one of the central lines of technical defence.

Limitation, accessory consequences, and routes to conclusion

The limitation periods under Article 131 depend on the maximum penalty: five years for penalties not exceeding that threshold, ten where the penalty is five to under ten years, fifteen between ten and under fifteen, and twenty for higher penalties. Minor offences, such as the one under Article 173.4, second paragraph, CP, become time-barred after one year. There is no three-year bracket for these offences. The special rule of Article 132.1 should be borne in mind: in offences against sexual freedom committed against minors, the period does not begin to run until the victim turns thirty-five, which substantially extends the window for prosecution.

Alongside imprisonment, a conviction for these offences may carry the supervised-release measure of Article 192, disqualification from professions or trades involving regular contact with minors, and entry in the sex-offender register, with prolonged effects. Against this, the defence assesses mitigating circumstances, reparation of harm, and, where appropriate and the client so decides on a fully informed basis, a guilty plea (conformidad) that moderates the penal response. The strategy is built case by case, always distinguishing the serious offences from the minor offence of Article 173.4, second paragraph, CP, from the merely administrative plane and from conduct that is not a criminal offence at all.