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. Although there is no offence specifically named "street harassment", various forms of conduct occurring in public can be subsumed under 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 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), generally not a crime and channelled into administrative infringements; (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 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 the offence. 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. A significant proportion of conduct reported as street harassment turns out to be criminally atypical; the defense must assess whether the facts actually constitute an offence or, at most, 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.

Defense Strategy

1. Atypicality of the conduct where the constituent elements (repetition, seriousness) are absent.
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.