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“Of the sexual aggressions to minors under sixteen years of age”, is how is entitled the Chapter II of the Title VIII of the Book II of the Spanish Penal Code (CP). It is a chapter which is located, after a first chapter dedicated to the sexual aggressions in general terms, with the peculiarity that this Chapter II is dedicated to the sexual aggressions to minors under sixteen years of age. Both chapters share similarities, for instance, how they define the acts typified as sexual aggressions, but there exist as well, important differences between them, like the lack of relevance given to the law to the consent granted by minors under sixteen years of age to maintain sexual relations.
The chapter dedicated to the sexual aggressions is made up of four articles, which we will comment in the first point of the writing, entitled “1) The sexual aggressions to minors under sixteen years of age”. Afterward, we will continue in order to comment other relevant aspects related with the sexual aggressions, therefore, this writing is formed by more points, which are: 2) The peculiarities of the statements given by the minors during the oral trial; 3) The concurrence of norms or crimes which may concur along the crimes of sexual aggressions to minors under sixteen years of age; 4) The difference between authorship, necessary cooperation and complicity; 5) When we are before a continuous crime; 6) The value of the statement of the victim as a proof capable of destroying the presumption of innocence of the accused; 7) The recognition of the accused during the stage of investigation; 8) How affects to the procedure the semi-public character of the crimes of sexual aggression; 9) The Organic Law 10/2022 of 6 September, of integral guarantee of the sexual freedom, and; 10) The moral damage derived from the crime.
1) The sexual aggressions to minors under sixteen years of age:
As we have said before, the Chapter II dedicated to the sexual aggressions to minors under sixteen years of age, is made up of four articles. In the article 181, we find defined the crime of sexual aggressions, with its types and aggravating factors. In the article 182, is punished who makes to be present a minor under sixteen years of age during acts of sexual character. In the article 183 is typified the behavior which consists into luring a minor for meeting with him or her and committing some of the crimes contemplated in the article 181 or 189, or obtaining pornography where she or he appears. And lastly, in the article 183 bis, we find an exemption, according to which will not be punishable the sexual acts carried out with minors under sixteen years of age when this acts are practiced with someone of similar age and psychological and physical maturity.
Let us now see, each one of the articles with more detail. We are going to start from the beginning, commenting the article 181. It states:
“Article 181:
1. Who carries out acts of sexual character with a minor under sixteen years of age, will be punished with the punishment of imprisonment from two to six years.
To this effect are regarded included in the acts of sexual character those which carries out the minor with a third or upon himself at behest of the author.
2. If on the behaviors of the last point concurs any of the modalities of sexual aggression described in the article 178, will be imposed a punishment of imprisonment from five to ten years.
In these cases, taking into account the minor entity of the fact and assessing all the concurring circumstances, including the personal circumstances of the guilty, may be imposed the punishment of imprisonment inferior in degree, except when violence or intimidation or any of the circumstances mentioned in the article 181.4 concurs.
3. When the sexual act consists in carnal access through the vagina, the anus or mouth, or the introduction of limbs or objects by any of the first two, the responsible will be punished with the punishment of imprisonment from six to twelve years in the cases of the point 1, and with the punishment of imprisonment from ten to fifteen years in the cases of the point two.
4. The behaviors envisaged in the above points will be punished with the corresponding punishment of imprisonment in its superior half when any of the following circumstances concur:
a) When the facts are committed by the joint action of two or more persons.
b) When the sexual aggression is preceded or accompanied of a violence of extreme gravity or of acts which have a degrading or humiliating character.
c) When the facts are committed against a person who is in a special situation of vulnerability by reason of its age, illness, handicap or for any other circumstance, and, in any case, when it is a minor under four years of age.
d) When the victim is or has been couple of the author, even without living together.
e) When, for the execution of the crime, the responsible has made use of a situation of cohabitation or of a relation of superiority or family, for being ascendant, or brother, by nature or adoption, or related, with the victim.
f) When the responsible makes use of weapons or other means of similar danger, susceptible of producing the dead or any of the injuries envisaged in the articles 149 and 150 of this Code, without prejudice of the envisaged in the article 194 bis.
g) When for the commission of this facts the author has annulled the will of the victim by means of medicine, drugs or any other natural or chemical substance suitable to that effect.
h) When the infringement has been committed within a criminal group or organization which is dedicated to carry out such activities.
5. In all the cases envisaged in this article, when the guilty has made use of its condition of authority, agent of this or public servant, will be imposed, besides, the punishment of absolute disqualification from six to twelve years.”
In the first point we find the basic type of the so-called crime of sexual aggressions to minors under the sixteen years of age. In it is punished who carries out acts of sexual character with a minor under the sixteen years of age, without being relevant for qualifying the facts as a crime whether the minor gave its consent to the practice of acts of sexual character. Let us now see, the more important aspects of this first point. The first we have to find out is what we should understand by acts of sexual character. The jurisprudence of the Spanish Courts has understood them in a broad way, as any act which attempt against the sexual liberty or indemnity of the minor under the sixteen years of age, therefore the objective element of the type will be fulfilled with touching, kisses or even strokes, always that them are charged with sexual meaning, the objective element of the type will be also fulfilled when the touching with sexual content are carried out by the own minor, or by a third party, when in both cases these touching have been carried out at the behest of the author of the crime. The Provincial Court of Barcelona´s sentence number 8250/2022 says regarding the above: “The Spanish Supreme Court´s sentence number 396/18 of 27 June 2018 remembers that the penal type of sexual abuse is shaped in our legal system framed within the following requisites: in first place, a subjective element of corporal contact, indecent touching, or any other exteriorization or materialization with sexual meaning. This objective element, of corporal contact, may be executed directly by the active subject upon the body of the passive subject or may be at behest of the first for being carried out by the passive subject upon its own body always that it is imposed.
The jurisprudential doctrine has repeated, among others in the Spanish Supreme Court´s sentence number 524/2020 of 16 October, that the brief touching is already regarded as a crime of sexual abuse. Indeed, the Spanish Supreme Court´s sentence number 331/2019 of 27 June, maintains that the brief or momentary touching does not exclude the sexual abuse, but, on the contrary, has to be regarded as criminal in the penal type of sexual abuses, appreciated case by case, and taking into consideration the context of the concrete case.”
On the other hand, the subjective element of the crime, will be fulfilled if the author knows that its behavior is damaging the sexual liberty and indemnity of the victim, and besides, it wants to cause this damage, without being required a special purpose with this behavior, like the lustful. In other words, its commission is only possible through direct malice, and why not, eventual malice, when the author is conscious that its behavior is with all probability damaging the legal good sexual liberty and indemnity of the victim. What leaves out, its commission by imprudence, since it is not expressly envisaged by the CP. Regarding the above, the Spanish Provincial Court of Barcelona´s sentece number 8250/2022 states that: “From the subjective aspect, for affirming the existence of malice it is enough with the fact that the author knows that is behavior, by its own nature, affects negatively to the sexual liberty and indemnity of the victim. Generally, in the facts concerning sexual contacts or actions of this kind, will concur a will which consist in the purpose of obtaining a sexual satisfaction, but this goal is not demanded by the type, and for that reason, cannot be demanded to be proven in the ambit of the presumption of innocence, for a behavior can attempt against the legal good protected, even when this purpose does not concur.”
The legal good, has been also interpreted in broad terms, for in the case of minors under sixteen years of age will not only be affected their sexual indemnity and liberty, but also their right to an adequate development of their sexuality, without external negative meddling which damage it. Regarding the above, the Spanish Provincial Court of Barcelona´s sentence number 14074/2022 states: “In the case of the crimes of sexual abuse on minors under sixteen years of age, the legal good protected is constituted by the “sexual indemnity” of the minors, a broad concept than the sexual liberty, which may form part of it, and which “is equivalent to the intangibility, constituting a manifestation of the dignity of the person and protecting the right to the correct development of the sexuality, without forced or traumatic interventions, in the private sphere of the minor which may cause unerasable footsteps in their mind” (Spanish Supreme Court´s sentence number 988/16 of 11 January, quoted by others, Spanish Supreme Court´s sentences number 116/19 of 11 March and 378/2019 of 23 July)”.
Another important aspect, we should comment in relation with the crime of sexual aggression of the article 181.1 CP is that, unlike to what happens with the sexual aggressions of the article 178.1, does not matter whether the victim has granted its consent or not, except in the cases envisaged in the article 183 bis. This is due to the fact that legally, the consent of a minor under sixteen years of age for carrying out sexual acts with a third, is null and void. In fact, there exists an iuris et de iure presumption, for being incompatible such consent with the conscience and free will demandable. The Provincial Court of Barcelona´s sentence number 8250/2022 states: “Consequently in the cases of a minor under sixteen years of age we are before a incapacity of the passive subject for giving a valid consent, resulting irrelevant the consent of this in maintaining relations – or another behavior related with the sexual ambit – hence under this limit legally envisaged, it is regarded the minor with a will lacking of the necessary formation for being regarded as free and though it consents or acquiesces in carrying out the sexual act, does not determine, in any way, the will of this. In these cases, there is a legal presumption that the minor is not able to grant a valid consent and, accordingly, if it grants it, it will lack any relevance for being tainted. In other words, what the law does not properly presume is the absent of consent in the minor, since it can perfectly consent the carrying out of the sexual act, this is, it has natural consent, but it is presumed the lack of legal consent and, by virtue of this legal presumption, it will be regarded as invalid, lacking of any legal relevance (Spanish Supreme Court´s sentence number 147/2017 of 8 March).
Let us see, the second point of the article 181. In it, what is done is to increase the punishment envisaged in the first point when, some of the modalities of sexual aggression envisaged in the article 178 concur, in other words, the mentioned in the second point, when “the acts of sexual content carried out employing violence, intimidation or abuse of a situation of superiority or of vulnerability of the victim, as well as those executed upon persons deprived of sense or whose mental situation is abused or those carried out when the victim has altogether annulled its will.”
In the third point of the article 181, what is punished is the known as the crime of rape. It is a sexual aggression characterized by the existence of carnal access by any of the three accesses mentioned, vaginal, anal or buccal. Though the introduction of objects in the first two accesses already mentioned, will be regarded as a rape too.
On the other hand, in the fourth point of the article 181 are enumerated determined aggravating factors, whose concurrence will suppose a harshening of the punishments envisaged for each of the crimes envisaged in the above points, the basic type of sexual aggression of the first point, the aggravated sexual aggression of the second point when any of the circumstances mentioned in the article 178 concurs, and the sexual aggression known as rape of its third point. The application of such aggravating factors has to be carried out carefully, for when some facts have been assessed for understanding applicable the second point of the article 181, cannot be assessed again for applying any of the aggravating factors of the article 181.4, otherwise the principle non bis in idem may be infringed, according to which no one can be punished two times for the same facts.
Lastly, in the fifth point of this article 181, is imposed, besides the punishments assigned to each of the types of sexual aggression, the absolute disqualification, when the author of the crime has made use of its condition as authority for committing any of the crimes.
Of the next article we need to talk is the article 182. In it, is punished another kind of behavior than the sexual aggression of the article 181. The article 182 states:
“1. Who, with sexual goals, makes to be present a minor under sixteen years of age during acts of sexual character, although the author does not take part in them, will be punished with a punishment of imprisonment from six months to two years.
2. If the acts of sexual character during which the minor under sixteen years of age was made to be present constitute a crime against the sexual freedom, the punishment will be of imprisonment from one to three years.”
As we can see, in it is punished a behavior, to make being present a minor under sixteen years of age during acts of sexual character, with sexual goals. But, besides, if these acts of sexual character to which the minor is made to be present constitute a crime against the sexual freedom, the punishment will be aggravated. Therefore, on the one hand, the objective element of the type will be constituted by this behavior which consists into making to be present a minor during acts of sexual character, even being possible that these acts constitute sexual aggressions. On the other hand, the subjective element of the type, will consist into knowing and wanting that with this behavior the legal good protected, the sexual freedom and indemnity of the minor, is affected. Existing in this case, a specific purpose, such behavior should have a sexual aim, thus in this case seems demanded the lustful will to which we referred above, but which we dismissed as necessary for the crimes envisaged in the article 181.
Another aspect we should comment is that, the acts of sexual character to which the minor is made to be present, seem to refer to sexual acts in vivo, for the article 186 CP expressly punished the exhibition of pornography to minors of age. Therefore, for the application of the article 182 seems to be demanded that the minor must be present during acts of sexual character practiced in vivo.
The next article we need to talk about, is the article 183. Which says:
“Article 183.
1. Who through internet, the telephone or any other technology of information and communication contacts with a minor under sixteen years of age and propose to agree a meeting with it with the aim of committing any of crimes described in the article 181 and 189, always that the proposal is accompanied of material acts of approaching, will be punished with the punishment from one to three years of imprisonment or fine from twelve to twenty-four months, without prejudice to the punishments corresponding to the crimes committed. The punishments will be imposed in their superior half when the approaching is obtained by means of coercion, intimidation or deception.
2. Who, through internet, the telephone or any other technology of the information and the communication contacts with a minor under sixteen years of age and carries out act aimed to entice it for obtaining from it pornographic material or the showing of pornographic images where is represented or appears a minor, will be punished with the punishment of imprisonment from six months to two years.»
As we can observe, the article 183 is made up of two different article, though both coincide in the use of telematic means for their commission. The former has been denominated by the doctrine as “child grooming” and consists in the utilization of this means, for trying to agree a meeting with a minor under the sixteen years of age, with the object of committing any of the crimes typified in the article 181 and 189. Nevertheless, the proposal should be accompanied of material acts of approaching, not being clear what we should understand by such material acts of approaching, though it seems to mean the effective carrying out of proposals for agreeing a meeting with the minor. Therefore, the objective element of the type, is constituted by those material acts of enticing aimed to agree a meeting with the minor under sixteen years of age, while the subjective element of the type, consists in wanting to agree a meeting with the minor under the sixteen years of age, for committing any of the crimes contemplated in the article 181 or 189, being perhaps this the element more difficult to prove in the case that in the messages exchanged with the minor do not expressly appear this purpose. What is making the legislator in these cases, is to advance the protection of the legal good protected, the sexual freedom or indemnity of the minor, by typifying a behavior which is only a preparatory act for committing other crimes. Besides, this is done expressing clearly what is the relation between this preparatory crime and the final crimes of the article 181 and 189, there exists a relation of concurrence of crimes of the article 73 CP and not of a concurrence of norms of the article 8.3 CP, hence each crime should be punished separately, without absorbing the broader or more complex precept the rest. We have to take also into account, when we are interpreting this first point of the article 183, that, what is making the legislator is punishing the use of telematic means for attracting a minor, but not when this means are used to facilitate the communication of relation which already exists. Let us see this excerpt from the Provincial Court of Valencia´s sentence number 64/2923: “Under the denomination of “Child Grooming” are gathered the actions consciously committed by the author with the aim of stablishing a relation and emotional control upon the minor with the goal of preparing the ground, one of whose aims is the sexual abuse of the minor.
Regarding the doctrine, it points out about it legal nature that it is a case in which the penal law advances the barrier of protection, punishing what, in reality, is a preparatory act for the commission of abuses and sexual practices to minor under sixteen years of age.”
Later the same sentence adds: “With respect to the first, the doctrine underlines that the penal law shapes in this crime a mixed accumulated type which demands a plurality of acts. On the one hand, it is required a telematic contact with minors under sixteen years of age which means to propose a meeting, and lastly the carrying out of material acts not merely formal carried out for achieving the approaching and subsequent contact which has to be through technological means. The law is referred to Internet, telephone, or any other technology of the information and the communication: it is therefore, an open list which comprehends any other mechanisms or systems of transmission of data which do not require connection to internet or telephone line, as for example, networking systems through Wi-Fi or Ethernet, apps based on Bluetooth or another systems which may be developed (Spanish Supreme Court´s sentences of 24 February 2015 and 22 September 2015), but in any case, aimed, for concluding with this objective elements of the type to the proposal of the meeting previously agreed and aimed to the tightening of the relation of seduction, in other words, to the approaching of the criminal to the minor, consolidating through such material acts the affect and confidence of the victim.”
And later the same sentence states: “Thereby is expressed by the pointed-out Sentence of the Spanish Supreme Court of 15 January 2020 (ROJ: STS 69/2020), draftsman Mr. Del Moral García, on pointing out the following:
“What is wanted through the article 183 bis CP (which later passed to be the article 183 ter 1) with a strengthened penal protection is to lift a first barrier of protection of the minors: their vulnerability before the new technologies is increased. But once established the personal contact and overcome the distance on having been given the jump from the virtual to the real, that from that time is used one or another means is indifferent. Only fit with the philosophy of this typicity the cases in which, the technological means of communication is the way by which the contact with the minor is established and is caught its interest; not those others in which, already existing direct knowledge, the means (telephone, social networks…) are only the tool for arranging meetings between who have already established and maintain a traditional personal relation.”
Let us now see, the second point of the article 183. In it we find, the so-called crime of sexting, which consists in trying to obtain through a minor under sixteen years of age, pornographic material in which appear minors of age. Therefore, here the subjective element of the type, will consist in this use of the minor under sixteen years of age for obtaining pornographic material in which appear minors, while the subjective element of the type, will be constituted by this will of acquiring pornographic material of minors through a minor under sixteen years of age. In this case, the legislator also advances the protection of the legal good, sexual freedom and indemnity of the minor, to before the reception of this pornographic material containing minors, what would constitute a crime of the article 189 CP. What is not as clear as before in this case, is the relation which exists between the crime of sexting and the crime of elaboration of child pornography of the article 189 CP, since it is said nothing in this second point about what it should be. Remaining silent the law regarding this relation, we can understand that between both crimes there exists a relation of concurrence of norms of the article 8 CP, and not of concurrence of crimes of the article 73 CP. This supposes the absorption of the crime of enticing for obtaining pornography of minors, by the crime of child pornography. Regarding the above the Provincial Court of Palma de Mallorca´s sentence number 288/2023 says: “With regard to the relation between both crimes we stressed in the Spanish Supreme Court´s sentence number 777/22 of 22 September: “the legal treatment of both penal figures (art. 183 ter 2 and 189 CP) is according to the rules of the concurrence of norms. Thereby, has been understood by even this Chamber in its Spanish Supreme Court´s sentence number 151/2019 of 21 March (RJ 2019, 1805): “…the new penal type whose application is requested by the appellant (art. 183 ter. 2) is referred to the criminal phenomenon known as sexting, neologism which is integrated by the words in English “sex” and “texting” -the sending of messages-, in these cases of pictures with sexual content which are sent through internet to third persons by minors of age. (…) However, the first alternative legal qualification which is proposed through the application of this precept is clear that cannot be admitted. For the new crime of enticing typifies behaviors which consist in contacting with minors under sixteen years of age, through internet, the telephone or any other technology of the information and the communication, and to carry out “acts aimed to entice it”, for obtaining or being shown pornographic images in which appears or is shown a minor, either the same, or, in its case, a third.”
Lastly, the last article of which we should talk is the article 183 bis, which states:
“Article 183 bis.
Save in the cases in which concur some of the circumstances envisaged in the second point of the article 178, the free consent of the minor under sixteen years of age will exclude the penal liability for the crimes envisaged in this chapter when the author is a person close to the minor for age and degree of development or physical and psychological maturity.”
This is a really important article, for it contains an authentic exemption for all the crimes mentioned in this Chapter II, it, therefore, has been the life ring which a lot of accused have tried to grasp. Nevertheless, for its application there exists two requisites, that the crime has not been committed concurring any of the circumstances envisaged in the second point of the article 178, as violence or intimidation, and that the author has to be a person close to the minor by age and degree of maturity. With regard to the first of the requisites, it is wholly understandable, evidently any type of consent obtained through violence, intimidation, prevailing or any other of the circumstances mentioned in the article 178.2, will be tainted and cannot be understood as freely given. On the other hand, the second of the requisites gives a little more of problems, above all because in the law is not established when has to be understood that there exists this proximity by age and degree of maturity, having to recur to the jurisprudence for knowing when this requisite is fulfilled. In order to find out the scope of the latter requisite, we can make use of the Spanish Superior Court of Castilla – La Mancha´s sentence number 433/2023: “The Spanish legislation does not define ranges of ages which have to be regarded as close, like it is done by other legal orders of our environment (in general from two to five years of difference between the author and the minor), it makes more difficult the task of determining in which cases have to be applied this circumstance according to the article 183 quarter CP, this is why the including of the requisite of degree of development and maturity shows that the age is not sufficient to fulfil the aim followed by the precept, and at the same time it allows to obtain an answer more satisfactory on correlating both requisites. This is why, the first problem to resolve is what is the difference of age between the parties for understanding that the consent is free and with which mechanisms of proof we can count for arriving to this legal conclusion.
According to the scientific literature the process of gradual maturity of a person takes places in three aspects: the biological, the psychological and the social. Therefore, has to be appreciated the degree of development of the primary and secondary sexual characters of the subjects (biological aspect); that the minor has capacity of abstract and deductive thought (psychological aspect); having to pay special attention to the capacity of understanding the alien emotions, taking into account the changeableness of the stage of the adolescence. There is unanimity in the scientific doctrine in that under the age of twelve this exemption cannot be applied. The Circular 1/17 of the Prosecutor General´s Office offers as orienting criteria a distinction around the protection which has to be granted to the victim, from the prepubescent minor to which is granted the maximum protection without excuse; a second level of intense protection from the puberty to the thirteen years, in which is set the age of the author up to the eighteen years; and a third level of protection which include the minors under fourteen and fifteen years of age, stablishing the age of the author up to the twenty included, and exceptionally up to the twenty-four years, being moderated in these two last cases taking into account the second requisite (degree of development or maturity).
The rules which can be drawn from the resolutions of the Supreme Court regarding to which it regards proximity in age is the dismissal of the application of the mentioned precept when the difference of age is important. Thereby Spanish Supreme Court´s sentence numbers 478/19 (12 years old – 39 years old); 67/16 (11 years old – 46 years old); 1001/16 (11 years old – 20,5 years old); 946/16 (11 years old – 19 years old), only exceptionally it is admitted as exemption in a case with a difference of age of 14 years old against 29 years old in a relation between the last regulation (13 years) and the reform carried out by the Law 1/12 (16 years old) but as an error of prohibition.
On the other hand, the exemption of liability of the article 183 quarter CP has been applied, by some Superior Court of Justice, as the one from Castilla-Leon in the recent sentence number 14/2020 of 18 March (Arandina case), although to one of the accused who was 19 years old, being the minor fifteen years old; and the one from Madrid in the sentence number 265/19 (14 years old / 19 years old, partners of high school and before friends, and 253/19 (15 years old – 20 years old); and also Provincial Courts, like the one from Madrid in the sentence number 756/19 or 527/19, and La Rioja 169/18 (9 years of difference).
From all these judicial resolutions may be drawn as general idea that the range of age “close” for operating the exemption of liability moves from two to five years, what is in accordance with the maximum limit stablished in legal orders around us which have opted for setting the concrete range of age.”
More recently the Supreme court has applied -and ex officio- the exemption of penal liability in the sentence 828/2021 of 29 October, in a case of sexual relations consented by a minor, who when the facts occurred was thirteen years old, being the accused twenty and nineteen years old, having been proven the existence of proximity in the degree of development and maturity between them.
Lastly, we can mention the sentence of the Spanish Supreme Court of 30 November 2022 -930/2022- in the cassation appeal against the sentence of the so-called Arandina-case which confirms the application of the exemption in the case of a victim who was 15 years old and an accused who was 19 years old, but rejecting the same even as attenuating factor in the case of the convicted who were 22 and 24 years old, considering that this precept does not envisage an attenuating factor.”
Therefore, from the above excerpt of sentence we can draw the following conclusions:
– To minors under the twelve years of age this exemption cannot be applied.
– The rule which can be drawn from the resolutions of the Spanish Supreme Court regarding what it considers proximity in age is that of dismissing the application of the mentioned precept when the difference of age is important.
– From all the resolutions can be drawn as a general idea that the range of age “close” for applying the exemption of liability moves from two to five years.
2) The peculiarities of the statements of the minors during the oral trial:
All the witnesses of a crime, including its victims, should appear in court for being able the court to use their statement as a proof capable of destroying the presumption of innocence of the accused. We can never forget the general rule according to which, the only proofs capable of destroying the presumption of innocence of the accused are those practiced in an oral trial according to the principles of immediacy, orality, contradiction and publicity.
However, this general rule, like a lot of another general rules, has exceptions, the so-called preconstituted and anticipated proof (art. 714 and art. 730 of the Spanish Criminal Procedure Act, henceforward LECrim). One of those proofs must be the statement of a victim or witness of a crime against the sexual freedom when it is a minor under fourteen years of age (art. 449 ter LECrim). Nevertheless, for being able this proof of destroying the presumption of innocence of the accused, has to fulfil some requisites, those mentioned in the article 449 bis LECrim, mainly that the proof has to be practiced before the Examining Magistrate, and it has to be subjected to contradiction by the lawyer of the accused. Besides the above two very important requisites, the statement should be documented in a means which is able to record the image and audio of the statement, for later being introduced in the oral trial by means of the article 730.2 LECrim.
In order to facilitate the work of the Examining Magistrate, in the article 449 is also envisaged the possibility that the victim under fourteen years of age may state helped by a specialist, psychosocial teams, which will be in charge of making the questions proposed by the parties to the victim and of obtaining the answers. For the cases in which the accused is also present during the taking of the statement to the victim in the stage of investigation, the article 449 ter envisages that it has to be made in a way that avoids the visual confrontation between accused and the victim, for example using a folding screen or the videoconference.
Despite all the above, it is also possible that a minor under fourteen years of age states in the oral trial, when it is requested by one of the parties and agreed through motivated resolution by the judge or court for being necessary (art. 703 bis LECrim).
We still have to talk about a range of age which is not covered by the regulation of the LECrim, for the chapter of the CP commented, talks about sexual aggressions to minors under sixteen years of age. What happens when the witness or victim is a minor who has surpassed the 14 years of age? In these cases, the victim or witness may request not to state during the oral trial, but for that it should be supported by the report of an expert, and it should be agreed by motivated resolution by the judge or court.
3) The concurrence of crimes or of norms which may concur along the crimes of sexual aggressions to minors under sixteen years of age of the Chapter II:
Being all the crimes included in the Title VIII of the Book II of the CP, crimes which affect to the same legal good, it is possible that the commission of one of them entails the commission of another crime. In these cases, we are before either a concurrence of crimes or a concurrence of norms, depending on whether the application of one penal type is capable of punishing all the unlawful behavior, or not. Let us see some examples:
The first example we can mention, is the concurrence between the crimes of exhibitionism and sexual provocation (art. 185 and art. 186), with the crime of sexual aggression to a minor under sixteen years of age (art. 181 CP). In these cases, the jurisprudence of the Spanish Courts has stablished that we are before a concurrence of norms of the article 8 CP, being enough with punishing the sexual aggression. The Provincial Court of Barcelona´s sentence number 8250/2022 says: “Moreover, it is doctrine of our Supreme Court that when the exhibition of such material takes place within the framework of the acts pertaining to the crime of abuse (or sexual aggression) the exhibition is integrated in it, being applied between them a concurrence of norms of the article 8.3 CP. But it is not extended to the case in which carried out the behavior punished in the current article 186 CP, it is not finally produced the determinant of the abuse or aggression, in whose case it will be punished independently as such crime. A good example of the aforementioned principle of absorption in this regard, the Spanish Supreme Court 449/2019, already mentioned, repeating doctrine, in the recent Spanish Supreme Court´s resolution number 513/2021 of 17 June “being criminal figures included in the same Title of the Penal Code, under the title of crimes against the sexual freedom or indemnity, that in both cases are behaviors which negatively affect to the same legal good, and when the victims are minors of age, if the exhibition has followed the typical physical contact it may integrate the crime of sexual abuse, and if such contact is not finally produced the behavior will be punished according to the crime of exhibitionism.”
The second example that we are going to mention, is the concurrence between a crime of sexual aggression to a minor under sixteen years of age (art. 181 CP) and the crime of elaboration of pornographic material (art. 189 CP). Here the jurisprudence of the Spanish Courts has chosen the other option, a concurrence of crimes (art. 73 CP). The Provincial Court of Ceuta´s sentence number 179/2022 says: “The concurring crimes are in a relation of concurrence of crimes, for there are two behaviors susceptible of penal assessment. One, the carrying out of acts of sexual nature with the minor, which gives rise to the crime of sexual abuse. The other, the recording of the sexual act, which gives rise to the elaboration of the pornographic material.”
Of the third example, we have already talked in another point. We refer to the concurrence between the crime of enticing of minors under sixteen years of age for obtaining pornographic material from them (art. 183.2 CP) and the crime of elaboration of child pornography (art. 189.1.a CP). Here, we talk again of a concurrence of norms, both crimes should be punished through the application of the article 189.1.a CP, for being the one which more punishment imposes (art. 8.4 CP). The Provincial Court of Palma de Mallorca´s sentence number 288/2023 says: “It was not limited, for, to the carrying out of the preparatory acts previous to the commission of the crime of child pornography envisaged in the article 189 of the Penal Code (RCL 1995, 3170 y RCL 1996, 777), that is in which substantially consists the new crime of enticing, but it achieved the material result of the crime of child pornography which is envisaged in the referred precept, and besides in some of the cases in the aggravated modality of its point 3.a). Being like this, the judgment of integration carried out by the sentencing Court fits with the typical demands of the article 189 and clearly surpasses the envisaged in the new article 183 ter.2 of the Penal Code (RCL 1995, 3170 and RCL 1996, 777)”.
We should remember that, with the crime of enticing of minors through telematic means for committing any of the crimes of the article 181 and article 189 (art. 183.1 CP), will not happen the same, for in these cases the own article 183.1 envisages that both crimes should be punished separately.
4) The difference between authorship, necessary cooperation and complicity:
Let us explain first in abstract, what are the differences between them, and later we will do the same applying them to the concrete case of the sexual aggressions.
According to the article 28: “Authors are who carry out the fact by their own, jointly or by means of another who they use as an instrument.
Will be regarded as authors too:
a) Those who directly induce another to execute it.
b) Those who cooperate in its execution with an act without which it would not have been executed.”
An author is who carries out the typical act, either by its own, or jointly with others, or by means of another who they use as an instrument (art. 28 CP), but always with the whole domain of the action typical of the authorship.
On the other hand, the necessary cooperator of the letter b) of the article 28, is distinguished from the coauthor due to the fact that whereas the coauthor has the absolute domain of the action, being a functional coauthorship if there exists a division of functions between those who intervene, the necessary cooperator executes an essential act for the execution of the crime, its participation has a subordinate character with respect to the author of the crime. Or how the Spanish Supreme Court´s sentence number 3096/2022 remembers to us: “there exists necessary cooperation when there are a collaboration with the direct executor providing a behavior without which the crime would not have been committed, when there is a collaboration through the contribution of something which is not easy to obtain in another way, or when who collaborates may impede the commission of the crime.”
And the accomplice, like the necessary cooperator, does not have the domain upon the fact, what distinguishes both figures is the relevance of the contribution. It makes a favoring contribution, but it is not essential for the commission of the crime, contrary to what happens with the necessary cooperator. Let us see this interesting excerpt from the Spanish Supreme Court´s resolution number 10665/2022: “Like the sentence of this Chamber 666/2016 of 21 July, quoting the previous number 508/2015 and 905/2014 “the accomplice… is an auxiliary of the author, who lacks the domain upon the fact, but who contributes to the production of the crime through the employment of means, physical or psychical, aimed to the carrying out of the project, participating in the common purpose by means of their voluntary contribution, concreted in acts (or omissions) of secondary character. It makes a favoring contribution, not necessary for the development of the iter criminis, but which heightens the risk of the production of the result. It is a participation not essential, accidental and not determinant, of inferior or secondary character”.
Once we have these concepts clear, we are going to apply them to the concrete case of the sexual aggressions. This distinction is relevant, for the condition of necessary cooperators which has been given to all those who has been present during a sexual aggression. It has been said, that their contribution has been essential for the consummation of the fact, since their presence has contributed to create this ambient of intimidation which has provoked the submission of the victim of the crime.
Let us see the said by the Spanish Supreme Court´s sentence number 534/2023: “Thus in the Spanish Supreme Court´s sentence number 1142/2009 of 24 November, was pointed out that it was the same the preconceived plan than the group acts simultaneous to the act and not premeditated: “The figure of the necessary cooperation in the crimes of sexual aggression is contemplated in multiple sentences, for example the Spanish Supreme Court´s sentence number 1291/2005 of 8 November says: “Ultimately, this concept of necessary cooperation is extended also to the cases in which, even not existing, a premeditated plan, is carried out the rape in the presence of persons without previous agreement, but with a conscience of the action committed. In these cases the intimidatory effect may be produced by the simple presence or concurrence of various persons, different from who materially consummates the rape, since the existence of the group can produce in the victim an state of environmental intimidation.»
Later the same sentence continues: “In the same sense, the Spanish Supreme Court´s sentence number 344/2019 of 4 July 2019, insists in delimiting the concept of environmental concept: “The Sentence number 1291/2005 of 8 November 2005, Rec. 263/2005, makes reference to the so-called “environmental intimidation”, where is stated that: “A conviction must punish all those who in a group participate in these cases of multiple sexual aggressions and because the presence of other or other persons who collude with who commits the forced sexual act forms part of the intimidating framework which weakens or even annuls the will of the victim for being able to resist, being, such presence coordinated in joint action with the main actor, integrating the figure of necessary cooperator of the point b) art. 28 CP. In these cases each is author of the number 1 of the art. 28 for the carnal act committed by it and necessary cooperator of the point b) of the same article, regarding the rest which its presence has favored (Spanish Supreme Court´s sentences of 7 March 1997 and number 481/2004 of 7 April).
Ultimately, this concept of necessary cooperation is extended also to the cases in which, even existing a premeditated plan, it is produced the rape in the presence of other persons, without previous agreement, but with conscience of the action committed by it. In these cases the intimidating effect may be the result of the simple presence or concurrence of various persons, different from who materially consummates the rape, since the existence of the group may create in the victim a state of environmental intimidation.”
Later, it explains why those present during a sexual aggression have to be regarded as necessary cooperators and not like accomplices: “On the other hand, this Chamber has also repeatedly declared that the complicity is distinguished from the necessary cooperation in the secondary character of the intervention, without which the criminal action might have been committed too, for not being its contribution of necessary character, either in the own sense, or in the sense of being easily substitutable for not being a scarce good. The complicity requires a participation merely accessory, not essential, which has been interpreted in terms of concrete dispensability or related with the case tried, not in terms of hypothetical committing circumstances, there should exist between the behavior of the accomplice and the execution of the infringement a contribution which although is not necessary, facilitates the commission of the crime by the main author (Spanish Supreme Court´s sentences number 676/2002, of 7 May; 1216/2002 of 28 June; 185/2005 of 21 February; 94/2006 of 10 January; 16/2009 of 27 January; 109/2012 of 14 February; and 165/2016 of 2 March).
Hence, how is repeated by the Spanish Supreme Court the contribution to the rape creating the violence or environmental intimidation is essential and not accessory, it constitutes a scarce good of difficult obtaining and besides it contributes to the execution of the result.”
5) When there is continuous crime:
The continuous crime is defined in the first point of the article 74: “1. Notwithstanding the above article, who, in execution of a premeditated plan or taking advantage of similar occasion, commits a plurality of actions or omissions which offend one or various subjects and infringe the same penal precept or precepts of the same or similar nature, will be punished as author of a continuous crime or misdemeanor with the punishment envisaged for the gravest infringement, which will be imposed in its superior half, being able to reach up to the inferior half of the superior punishment in degree.”
Like we can observe from what is said in this first point of the article 74, there exists a great difference between qualifying the facts as one only act which is executed as an action, as a continuous crime of the article 74, or even as a real concurrence of crimes of the article 73. Since in each of these cases, the punishment will be different.
Let us now see, what has been said by our courts, regarding the continuous crime when we are before a sexual aggression. In the Provincial Court of Teruel´s sentence number 1011/2022, we find the requisites for appreciating it, it states that: “The already old Sentence of the Spanish Supreme Court of 2 April 2001 establishes the requisites of the continuous crime of sexual abuses which have been maintained until now: “plurality of facts, distinguishable, subjected to trial; existence of a premeditated plan or taking advantage of the same occasion; unitary malice; identity or, at least, analogy of the precept infringed; homogeneity of the way of execution; and the same passive subject.”
The Provincial Court of Navarra´s sentence number 30/2023 is even more clear, for it helps us to distinguish between the three scenarios which we mentioned before: “The Spanish Supreme Court´s sentence of 15 January 2019, quoting previous sentences which reflect such doctrine, that there exists “the natural unity of action when the criminal activity is repeated in the same place and within scarce period of time, always with the same purpose and affecting to the same passive subject, this is “when the typical corporal movements are repeated within a same space and in a narrow period of time”, in other words, when there are two or more penetrations in the same situation and context…the carnal access for the different accesses of the article 179 CP, practiced in the same act, with the same person and with the same sexual intention, constitutes only a crime (Spanish Supreme Court´s sentence number 42/2007 of 16 January). The reason is explained in different sentences (Spanish Supreme Court´s sentence number 396/2004 of 26 May), because before an uninterrupted sequence, where progressively are attacks against the sexual freedom of the victim, in a way in which is not possible to distinguish different ambits of space and time, being consecutives the sexual acts, must be regarded the different penetrations as only one action…there will exist a natural unity of action when the crime is repeated in the same place and in a scarce period of time, always under the same purpose and affecting the same passive subject.
In such case, the criminal act cannot be divided into as much facts as repetitions of the same behavior, being affirmed the existence of only one criminal infringement…When such requisites concur, we cannot talk about a plurality of crimes, nor of a continuous crime, but of only one crime which absorbs or consumes through the gravest criminal infringement appreciated the other which results more slight…” And concludes that quoted sentence of 15 January 2019, pointing out that “Ultimately the recent Spanish Supreme Court´s sentence number 351/2018 of 11 July, quoting the Spanish Supreme Court´s sentences number 463/2006 of 27 April and 305/2017 of 27 April, distinguishing three different situations, without prejudice of others that the sociological reality can provide:
a) When there exists no continuity between one and other access, producing an immediate interaction, either for intimate dissatisfaction of the sexual desire of the active subject or because the criminal act responds to the same manifestation or erotic spring, although are made different penetrations through the same or different access (vaginal, anal or buccal) we will be before only one crime and the repetition may have consequences in the determation of the punishment.
b) When the acts of aggression or sexual abuse are carried out between the same main characters and the repetition of single acts is prolongated during the time, but it takes place under the same violent or intimidating situation, we will be before a scenario of criminal continuity.
c) Finally, when the interaction of the sexual acts (usually aggressive) is distinguishable in the time and consequence of different aggressions or threats for submitting in each concrete case the will of the passive subject, we will be before a real concurrence of crimes….”
6) The value of the declaration of the victim as a proof capable of destroying the presumption of innocence of the accused:
We have to depart from the base that, the only proofs with capacity for destroying the presumption of innocence of the accused, are the practiced in a trial under the principles of orality, contradiction, publicity and immediacy. Although it is also true, that there exist exceptions to such general rule, as the preconstituted proofs and the anticipated proofs (article 714 and article 730 of the Spanish Penal Procedure Act, hereafter LECrim).
One of the main proofs which will be practiced during the trial, is the statement of the victim of the crime. We said “main”, because usually it will not be the only proof practiced during the oral trial, but it will be accompanied of others, as the statement of the witnesses, the police who was part of the previous investigation, or the experts. The problem arises, when the only proof that exists is the statement of the victim of the crime, something which is not strange in the crimes of sexual nature, for with frequency is sought the solitude of the victim for committing them. There exists a problem, because in these cases the right constitutionally recognized of the accused to the presumption of innocence (art. 24 CE) may be infringed, and with it, the principle in dubio pro reo, which although not expressly recognized in the Spanish Constitution, has been understood included in this right to the presumption of innocence, as the right of the accused to be acquitted in the case that there exist doubts in the Court concerning the guilty of the accused.
Regarding the above, the Provincial Court of Madrid´s sentence number 2008/2023 says: “In this sense, we should begin remembering that, the prosecution has the burden of proving the crimes object of accusation and the participation in them of the accused, since the last is protected by the presumption of innocence recognized in the article 24 of the Constitution.”
Later the same sentence continues: “Nevertheless, the same jurisprudence also points out that, among others in the Sentence of 3 October 2003 (Sentence number 1246/2003) and of 16 November 2003 (Sentence number 1317/2004), that when the statement of the witness is the only proof which exists, it is demandable a careful assessment by the judicial organs, with the end of assessing its credibility, for in such cases there exists an extreme situation of risk for the constitutional right of innocence, being more extreme such risk if the alleged victim is who began the process through the corresponding report and later sustains it along the procedure. And adds the quoted sentence that, it is possible to reach even a more extreme situation, in those cases in which the statement of the accuser is not only the only proof of the alleged authorship of the accused, but also of the own existence of the crime, of which does not exist any proof, aside from the own statement of the accusation.”
However, it has also been said by our jurisprudence that, the statement of the victim of a crime can be also enough for destroying the presumption of innocence of the accused. Though due to the dangers which we have previously pointed out, the jurisprudence has also developed some requisites, which though not of obliged fulfillment, help the judges and courts in their work analyzing the truth of the statement of a victim. According to the Provincial Court of Navarra´s sentence number 30/2023 these requisites are: “Analyzing with more detail the Supreme Court these cautions guaranteeing the veracity of the victim´s statement, points out that them are concreted in the following:
“A) Absence of subjective incredibility, which may result from its characteristics or its personal circumstances. In this point, two are the relevant subjective aspects:
a) Its own physical or psychoorganic characteristics…
b) The existence of wrongful purposes which may result from the fantasies of the victim, as a possible motive of its statement, or from the previous relationship between accused and the victim, which reflects motives of hate or resentment, revenge or enmity, that taint the sincerity of the statement making doubtful its credibility, and creating a state of uncertainty and suspicion incompatible with the formation of a conviction about the guilty of the accused upon a solid base; but without also forgetting that though all the persons who report a crime may have an interest in the conviction of the reported, not for this is not valid its statement (Sentence of 11 May 1994).
B) Credibility of the statement, based in the logic of its statement and the supplementary support of objective data:
This supposes:
a) The statement of the victim has to be logical in itself, in other words, not contrary to the rules of the common logic or common experience, what demands to assess whether its version possible, or whether it is not due to its own content.
b) The statement of the victim has to be surrounded by external corroborations of objective character in the procedure; it means that the own fact of the existence of the crime is supported by some data added to the pure subjective statement of the victim…
The objective data of corroboration can be different: Injuries in crimes which usually produce them; statements of other persons about facts or data which without properly being the crime are related with some fact whose corroboration contributes to the veracity of the statement of the victim; expert´s reports about aspects of similar corroborating value; …
C) Persistence in the accusation, which should be maintained in the time, and exposed without ambiguities or contradictions.
This factor of assessment supposes:
a) Persistence or the absence of changes in the successive statements given by the victim without contradicting or belying itself…
b) The statement has to be precise, without ambiguities, generalities or vaguenesses…
c) Coherence or absence of contradictions, maintaining the statement the necessary logical connection between its different parts.”
Although it can be regarded as a requisite like any other, since it is located along the others and it is not stressed in any way. It is possible to find jurisprudence which grant a special relevance to the requisite included in the letter b) within the so-called credibility, in other words, “The statement of the victim has to be surrounded by external corroborations of objective character in the procedure; it means that the own fact of the existence of the crime is supported by some data added to the pure subjective statement of the victim…” Such special relevance consists in which it can be regarded as an essential requisite, and therefore, not remediable by the strengthening of others, what in short means that, the statement of the victim is not enough to destroy the presumption of innocence of the accused, if it is not accompanied by other proofs of objective character which corroborate it.
A good example of the above is the Provincial Court of Madrid´s sentence number 2008/2023: “it has been also usually demanded, specially in the more recent jurisprudence, that the statement of the victim should be surrounded of external corroborations of objective character found in the procedure, adding that it means that the own fact of the existence of the crime has to be supported by some added data asides the pure subjective manifestation of the victim, being necessary to asses adequately this circumstance in crimes which do not leave material proofs or evidences in their commission, in a way that the fact that the corroborating data cannot be contrasted does not invalidate the statement if the impossibility of verification is justified by virtue of the concurrent circumstances.
From the exposed follows that, according to the more recent jurisprudence, will not be enough for convicting the accused that in the victim concurs absence of subjective incredibility and that is incriminatory testimony is presented as credible and persistent, but it will be necessary that some alien and external data to the victim and its statement concurs that serves to corroborate its statement, even more when such corroborating data exist or should exist and can be brought to the oral trial through the proper proving activity, which should be borne, obviously by the accusation. And if this element of corroboration is not adequately proven in the oral trial we will not be able to talk about the existence of proof enough for destroying the constitutional presumption of innocence of the accused, even when it is really credible, from a purely objective point of view, the statement of the victim.”
Or the Provincial Court of Madrid´s sentence number 17585/2022, which affirms that: “The presumption of innocence cannot be destroyed, by the simple word of who accuses”.
With the rest of the requisites, the courts have been more lenient, in fact it is affirmed that the lack of the fulfillment of some requisite, may be compensated by the strengthening of the fulfillment of other. Though it is also affirmed that, the lack of fulfillment of all, should entail the dismiss of the victim´s statement as proof, as the Provincial Court of Navarra´s sentence number 30/2023 remembers to us: “And in relation with these criteria, the doctrine of the Supreme Court specifies that “The deficiency in one of the criteria does not make invalid the testimony, and can be compensated by the strengthening in other, but when the statement constitutes the only proof, an unsatisfactory fulfillment of the three modules of contrast impedes that the accusing statement may be apt by its own to destroy the presumption of innocence, like the statement of one accused when it accuse another without elements of corroboration, since it lacks the necessary strength for generating certainty (Spanish Supreme Court´s sentences number 938/2016 of 15 December; 514/2017 of 6 July; 437/2017 of 15 June; and 573/2017 of 18 July, among others).” (Sentence of the Supreme Court of 20 September 2019).”
7) The recognition of the accused during the stage of investigation:
The recognition of the accused during the stage of investigation in an identity parade, is not obligatory, but it can help the victim or its witnesses for identifying the guilty of any crime, like a crime of sexual aggression. It is regulated in the article 368 of the LECrim, and it has the following features:
1. Such recognition in identity parade only takes place, as it is drawn from the article 368 LECrim, when there are doubts about this identification.
2. Even though it is practiced will all the guarantees (in the presence of the Examining Magistrate and the lawyer of the accused) it cannot be regarded as a preconstituted proof, since it is not of impossible repetition during the oral trial (art. 730 LECrim).
3. In order to be understood as a valid proof and enough for destroying the presumption of innocence, the recognition has to be repeated during the oral trial through its ratification by the victim or witness in such trial, with the end of subjecting the recognition to contradiction and immediacy, as the guarantees of the procedure demand.
4. When the recognition in identity parade constitutes the only proof in which can be based the conviction, can be sustained that the high risk of error of this kind of proof is contrary to the right of presumption of innocence of the accused.
With respect to the photographic recognition, it is a sort of proof which shares with the identity parade the same characteristics, indeed the jurisprudence has developed it in similar terms. The photographic recognition consists in showing to the witness or victim of a crime pictures in which may appear the alleged author of the crime.
8) How affects to the procedure the semipublic character of the crimes of sexual aggression:
The article 191 of the CP states:
“1. In order to proceed for the crimes of sexual aggression and sexual harassment it is necessary the report of the offended, of its legal representative or lawsuit of the Public Prosecution, who will act taking into account the present legitimate interest. When the victim is a minor of age, a handicapped person needed of special protection or helpless person, it will be enough with the report of the Public Prosecution.
2. In these cases the pardon of the offended or its legal representative does not extinguish the penal action, nor the liability of this class.”
The first point of this article transforms the crime of sexual aggression, into a semipublic crime, in other words, a crime which supposedly needs the report of the offended or its legal representative, for allowing the criminal procedure to begin. But we have to be careful interpreting this requisite, for the jurisprudence of the Spanish Courts has understood this requisite in a broad way, not restrictive, allowing the procedure to begin without the report of the victim or its legal representative, and understanding that this requisite can be remedied when the victim takes part in the procedure as a party, or simply when it expresses its conformity with the procedure not opposing to it. This excerpt from the Spanish Superior Court of Cataluña´s sentence number 3902/2022, is clear regarding the above: “In this same direction and according to what is remembered by the Spanish Supreme Court´s sentence number 340/2018 of 6 July, quoting previous sentences (Spanish Supreme Court´s sentences number 96/2009 of 10 March or 705/2016 of 14 September), this requisite has to be understood as fulfilled when the offended takes the position of a party in the procedure for exercising the accusation or when, knowing the existence of the procedure it does not oppose to it. It has been said too that, the passive conformity to the procedure, remedies the lack of the initial report (Spanish Supreme Court´s sentence number 1341/2000 of 20 November) and even that the renouncing to civil actions by the legal representative of the minor does not undermine the legitimacy of the conviction (Spanish Supreme Court´s sentence number 131/2013 of 20 February).”
Notwithstanding this broad interpretation, it is evident that with the simple conformity of the victim to the procedure, passive, it will not be enough for achieving the degree of certainty needed for destroying the presumption of innocence of the accused. In any crime, but even more in a crime of such personal character, will be essential the statement of the victim (except in la laboratory scenarios in which for example there is a videotape that recorded the crime), the statement of the victim during oral trial will be the main proof around which will turn the rest of the proofs which may sustain a conviction.
Let us now see the second point of the article 191. In it we see, the second feature of the so-called semipublic crimes, the pardon of the offended or its legal representative does not extinguish the penal action, or what is the same, the renouncing to the penal action or even the civil action in accordance with the article 106 and 107 of the LECrim does not suppose the extinction of the penal procedure, for the public prosecutor may continue being a party of the procedure exercising the so-called public accusation.
This has an important consequence, once the victim has decided to report the facts, it lost the control upon the procedure. Regarding the above the Spanish Supreme Court´s sentence number 402/2023 says: “Indeed, in the so-called semipublic crimes or semipublic, like the sexual aggression, the procedure depends on the corresponding report by the offended but, once the report is presented, the renouncing to the exercise of penal actions by the offended does not impede the continuation of the procedure, in accordance with the articles 106 and 107 of the LECrim (Spanish Supreme Court 316/2013 of 17 April and 75/2006 of 3 February). Concretely, and for the case of the crimes of sexual aggression, the article 191.2 CP states that “the pardon of the offended or its legal representative does not extinguish the penal action, nor the liability of this class.” this evidences even more that the lack of exercise of actions by the victim is not a extinguishing cause of the criminal liability in this class of crime.”
Adding later the same sentence: “In the ambit of the penal procedure the renouncing entails, either the exclusion of the condition of procedural party, or the extinction of the penal action, but this last case only in those crimes in which the pardon is an extinguishing cause of it (crimes of discovery and revelation of secrets -art. 201.3 CP-, slanders and calumnies -215.2 CP and damages caused by negligence in an amount greater than 80.000 euros -267.3 CP)”.
This same sentence clarifies, as consequence of the lack of clarity of the LECrim´s precepts, the guarantees which should surround the renouncing of penal or civil actions by the victim, for example, pointing out that it should be done in the presence of the its lawyer and the Examining Magistrate, and having been previously informed of the compensations to which it would have right. The aforementioned sentence later says: “Indeed, this Chamber has declared in relation to the renouncing of the civil action that, it has to be express and clear and that it cannot leave any doubt for its clarity and content of what was the will of the renouncer (Spanish Supreme Court´s sentence number 1755/2003 of 19 December and 250/2005 of 28 February) and declaring that the renouncing has to be interpreted in a really restricted way (Spanish Supreme Court´s sentence number 3862/1990 of 1 December), excluding from the condition of renouncing doubtful expressions, like “…that it don´t claim anything, that the only thing it wants is to forget the matter; that the money does not matter to it and that it would have never reported the crime for money; that it didn´t know that the accused had to give it something and that what she wants is that the people know that it has make harm, that it cannot go harming the people…” (Spanish Supreme Court´s sentence number 102/2021 of 5 February). In the already quoted Spanish Supreme Court´s sentence number 102/2021 of 5 February, it is declared that the renouncing of the civil action, cannot be left to the procedure envisaged in the article 109 LECrim, but the victim needs the precise information of the compensations to which it has the right, without being equitable the renouncing to the mere withdrawal.
And if this is like this for the exercising of civil actions, with more reason has to be demanded this information for the renouncing of the penal actions. For understanding the renouncing of the criminal action as definitive or irrevocable our opinion has to be even more restricted, it is not enough with being the expression renouncing to the penal action precise and clear, it is necessary that the victim has to be informed of the consequences of this renouncing. Therefore, the simple affirmation that it is renounced the exercise of the penal actions, if it is not accompanied of the precise information about the effects of it, does not impede the later appearance of the offended in the procedure, previous to the qualification of the crime, for exercising the penal action according to the envisaged in the article 109 of the LECrim.”
And we have to say something important which we have not said yet, but which is mentioned in the above excerpt. According to the article 109 bis and article 110 LECrim, the offended and the damaged by the crime (the doctrine understands for offended the person who directly suffers the harm caused by the crime, whether it is the damaged, and for damaged the person who suffers the damaging consequences of the crime, economically assessable, whether patrimonial or moral) will have the opportunity of being a party of the penal procedure until the provisional qualification of the crime.
9) The Organic Law 10/2022 of 6 September, of integral guarantee of the sexual freedom:
We have already commented something at the beginning. The LO 10/2022 reformed the content of the Title VIII, changing a lot of the punishments associated to the crimes regulated in it. This has provoked a lot of claims asking for the revision of numerous sentences, by convicted trying to make effective their right to the retroactive application of the favoring penal precepts of the article 2.2 CP, which even reach the rank of constitutional right recognized in the article 9.3 of the Spanish Constitution (CE) for reverse interpretation of the principle of non-retroactivity of the sanctioning dispositions not favorable or restricting of individual rights.
A good example of the above is the said by the Provincial Court of Valencia´s sentence 6/2023: “As declares, among others, with general character the sentence of the Constitutional Court of 11 November 1998, number 215/1998, the “retroactivity of the penal law more favorable is a principle constitutionally recognized through a reverse interpretation of the art. 9.3 CE (Spanish Constitutional Court´s sentences number 8/1981, 51/1985, 131/1986, 21/1993). And the sentence of the Supreme Court of 15 June 2012, rec. 1432/2011, number 538/2012, that “the principle of retroactivity of the penal dispositions more favorable reach in our penal legislation the firm sentences always that they are not wholly executed (art. 2.2 of the Penal Code).”
The only limit which has been marked by the art. 2.2 CP are the firm sentences already fully executed, therefore, can be the object of revision the sentences which are being appealed, and all those which having exhausted all the appeals against them, have not been fully executed yet.
Now, the most important is to find out what has been the criteria followed by our courts when they have applied the art. 2.2 of the CP. Regarding the above the Provincial Court of Valencia´s sentence number 6/2023 says: “Nevertheless, in occasions arises the problem of determining whether the new norm is more favorable to the convicted, and to this end this Chamber has repeated that the comparison of the laws applicable to a concrete case has to be made taking into account the laws as a whole, without being possible to choose the favorable aspects of the new law, and to dismiss those which are not favorable. This is how have interpreted the matter some transitory dispositions introduced by relevant reforms of the CP (Second Transitory Disposition of the Penal Code of 1995, First Transitory Disposition of the Organic Law 5/2010, of 422 June, and First Transitory Disposition of the Organic Law 1/2015 of 30 March)”. If on making the comparison as a whole of the two legislations the punishing framework varies, it will be obliged to determine the punishment to be imposed for the facts that were object of conviction attending the qualification of the facts in both legislations and the punishment to be imposed which results from the concurring modifying personal circumstances of the criminal and the greater or lesser gravity of the fact” (article 66.1.6º of the CP)”.
Then, we have to compere both regulations, the new and the old, as a whole, in order to determine which one is better for the convicted. In this work of comparison, we have to take into account all of the aspects, freedom´s privative punishments or accessory punishments, or even the attenuating and aggravating factors which may affect to them. Nevertheless, of all this circumstances which should be taken into account, the most important will be always the freedom´s privative punishment, if there exists a reduction of it in comparison with the last regulation, without doubt the reform will be favorable to the convicted. As the Provincial Court of Madrid´s sentence number 4/2023 says: “but logically, ordinarily, the imposition of a punishment of imprisonment of less duration, which entails a shortening of the conviction, is more favorable to the convicted, for much accessory punishments which may be imposed.”
The reform, without doubt, has been favorable to a lot of convicted, who have seen how their freedom´s privative punishments have been reduced. Above all, in those cases in which the absence of attenuating or aggravating factors provoked the imposition of the minimum legal punishment by the judge or court, for in numerous cases the LO 10/2022 has reduced this legal minimum, being applied in the revision of the sentences this new minimum.
10) The moral damage derived from the crime:
As always, one of the most important parts of a conviction is the declaration of the civil liability with which the victim has to be compensated, except in the cases in which the victim has decided to reserve the exercise of the civil action in an independent procedure (art. 112 LECrim).
Before the absence of physical damages, above all in this kind of sexual aggressions where can be used as a form of coercion the intimidation, are specially relevant the moral damages, which although do not leave marks in their commission, has to be assessed and compensated to the victim. Moreover, in the article 193 CP, it is expressly recognized the necessity of including the civil liability along the possible punishment.
The problem of the moral damages is that they are not assessable, that there exist no criteria, an arithmetic formula from which is possible to obtain a just assessment.
Let us now see this little excerpt from the Provincial Court of Palma de Mallorca ́s sentence number 111/2023: “As the jurisprudence has repeatedly manifested, the moral damages, due to their own nature, are not objectively assessable, nor have to be them proven when their existence is inferred directly from the facts (S.T.S. 907/2000 of 29 May and 1490/2005 of 12 December); thereby, for their appreciation and assessment, will be enough with either to prove them or to be them a natural consequence of the proved facts or, using the words of the Supreme Court, that they “flow” in a natural way from the facts and have certain relevance ( STS of 24 of April 2014).”
This from the Spanish Supreme Court ́s sentence number 661/2023 is also interesting: “In any case, it is important to stress that the compensatory amount set is reasonable and is sufficiently explained. It is adjusted to usual standards. It is appropriate to remember using as example the Spanish Supreme Court ́s sentence number 97/2016, of 28 June: “…the economic translation of a reparation for moral damages is a duty reserved to the arbitrariness of the Court of instance and, therefore, cannot be appealed in cassation. It is possible to discuss the basis but not the concrete amount, which is not only not limited by arithmetics rules; but besides the moral damages cannot be assessed with accuracy ( STS 957/2007, of 28 November). When the assessment is fitted to usual standards and parameters that, without being exact, turn around to criteria commonly shared and recognizable, will not be necessary a reasoning, impossible, which justifies why is given “x” euros and not a slight superior amount, or slight inferior amount. Only when the setamount does not have the minimum basis and, besides, does not follow the usual or understandable standards, in a way which it is presented as the fruit of pure arbitrariness or whims is possible the review as remember to us the Supreme Court Sentence 957/2007.»
Therefore, from the above we can extract the following conclusions about the moral damages:
– They cannot be objectively assessed, nor have to be them proven when their existence is unquestionably inferred from the facts.
– Their assessment is duty of the Court of instance.
– Their assessment should fit the usual standards and parameters that, without being exact, turn around to criteria commonly shared and recognizable.
– It is not necessary a motivation in the sentence of why is given an amount and not other slightly superior or inferior.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com