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“Of the sexual harassment” is the title of the Chapter III of the Title VIII of the Spanish Penal Code (CP), dedicated to the crimes against to the sexual freedom. It is a chapter made up of only one article, the article 184, where is described the basic type of sexual harassment in its first point, three scenarios where the punishment imposed for the basic type is increased when either the circumstance of abuse of superiority concurs, the crime is carried out at a reception center or the victim is in a special situation of vulnerability, and lastly a fourth point, where is expressly envisaged that the legal entities can also be liable of that crimes according to the stablished in the article 31 bis CP.
In order to complete the information concerning this crime, we are going to divide this work into two points: 1) The crime of sexual harassment of the article 184, and; 2) The differences of the crime of harassment or stalking (art. 172 ter CP), the crime of workplace harassment (art. 173.1 CP) and the crime of sexual harassment of the article 443 CP, with respect to the crime of sexual harassment of the article 184.
1) The crime of sexual harassment of the article 184:
Before entering to know the exact content of the article 184, it is convenient to see from where it comes from, rights to which it affects, and its most important features. For that, the best we can do is to read the following excerpt from the Provincial Court of Lugo´s sentence 642/2022, where is mentioned the sentence from the Spanish Supreme Court most used by the Spanish courts when is explained the scope of the crime of sexual harassment: “For its interest for solving the questions presented to us and its value almost didactic, we want to remember the Sentence of the Spanish Supreme Court number 721/2015 of 22 October, deponent Cándido Conde-Pumpido Toruón, despite the risk of its extension, where is explained the following:
“The crime of sexual harassment is introduced in our penal law with the Code of 1995 and is modified its wording by the reform carried out by the Organic Law 11/1999 of 30 April (and later by the Organic Law 15/2003 of 25 November, which increased the punishment, introducing the punishment of imprisonment).
As the Sentence from this Chamber says, the number 1135/2000, of 23 June, which is the only one, so far, that has interpreted this penal type, has been the European Commission, in its Recommendation of 27 November 1991 concerning to the protection of the dignity of the woman and man in the work, that included a Code of behavior about the measures to deal with the sexual harassment, and to the effects that interest us, it contains a definition of sexual harassment as that behavior of sexual nature or another behaviors based in the sex which affect to the dignity of the woman and the man in the work and which may include physical behaviors, verbal or not verbal, in any case unwanted. It adds that the sexual attention becomes sexual harassment if it continues once the person object of it has clearly shown that it has regarded it as offensive and what distinguishes the sexual harassment from the friendly behavior is that the former is unwanted and the latter accepted by both. The sexual harassment, on constituting an attempt to the free decision of not being involved into an unwanted sexual relation is affecting the more intimate sphere of the person, whose protection proclaims the article 18.1 of the Spanish Constitution, being likewise a reflection of its dignity, emphasized in the art. 10 of this.
The typification of the sexual harassment in the Penal Code poses, immediately, the question of when is surpassed the own ambit protection of the labor or civil law for stepping into the undoubtedly more severe penal protection. Reasons for a greater and effective protection of the graver manifestations of sexual harassment justify the specific typifying of this behavior, where must concur, for being demanded by the principle of legality, all the objective and subjective elements which characterize this criminal figure.
Let us now study the elements which must concur for being before a behavior of sexual harassment, after the modification carried out by the Penal Code, by the mentioned Organic Law 11/1999. They are the following: a) The typical action is constituted by the request of sexual favors; b) such behaviors should be requested either for the own criminal agent, or for a third party; c) the ambit in which are requested such favors has to be within an employment relation, teaching relation or rendering of services, continuous or usual; d) with such behavior has to be provoked in the victim an objective situation and gravely intimidating, hostile or humiliating; e) between the action carried out by the agent and the result demanded by the penal precept should exist an adequate link of causality; f) the author has to act with malice, not allowing the law imprudent ways of commission.
With respect to the first requisite, it is demanded, as principal element of this, a request of sexual favors. This Cassation Chamber has declared that such requisite is fulfilled “when there exists a request of treatment or action of sexual content which is presented serious and undoubtful, whatever the means of expression utilized”, in a way that such behavior results unwanted, unreasonable and offensive for who suffers it. In fact, it is enough with the mere request, which can be made explicitly or implicitly, but in all cases should be revealed in unequivocal way. It is not necessary either, that it is translated in acts of abuse or sexual aggression, regarded as crimes in other precepts of the same Title, for in the event of concurring with the sexual harassment we will be before a concurrence of norms which would be usually solved by the principle of consumption. From this perspective, the sexual harassment is something previous, which seeks the abuse or sexual aggression, but which acquires its own criminal features, according to the penal protection granted to the victim when it takes place in the concrete ambit where it is punished, and which the law designs as the work environment, teaching environment or the rendering of services, whatever is the continuity of them, with a broad scope which comprehends all those ambits where are carried out the human relation most needed of protection.”
After reading this important excerpt, let us now try to sum up its content:
– The crime of sexual harassment is typified for the first time as crime by the Penal Code of 1995.
– The crime of sexual harassment affects the intimate sphere of the person, protected in the article 18.1 of the Spanish Constitution (CE), as well as its dignity, emphasized in its article 10.
– The CP protects the graver behaviors, the rest are reserved to the civil and work ambit.
– This are the essential characteristics of the crime of sexual harassment: a) The typical action is constituted by the request of sexual favors; b) such behaviors should be requested either for the own criminal agent, or for a third party; c) the ambit in which are requested such favors has to be within an employment relation, teaching relation or rendering of services, continuous or usual; d) with such behavior has to be provoked in the victim an objective situation and gravely intimidating, hostile or humiliating; e) between the action carried out by the agent and the result demanded by the penal precept should exist an adequate link of causality; f) the author has to act with malice, not allowing the law imprudent ways of commission.
– The sexual harassment advances the ambit of protection to behaviors, which in the case of being physically materialize will constitute a crime of sexual aggression, existing in such cases a concurrence of norms, which usually will be solve by the principle of consumption of the article 8.3 CP.
Now, finally has arrived the turn of seeing the content of the article 184, with the guarantee that we will be able of understanding it. The article 184 says:
“1. Who requests favors of sexual nature, for itself or for a third party, in the ambit of a work relationship, teaching relationship, rendering of services or analogous, continuous or usual, and with that behavior provokes in the victim an objective situation and gravelly intimidating, hostile or humiliating, will be punished, as author of sexual harassment, with the punishment of imprisonment from six to twelve months or fine from ten to fifteen months and special disqualification for exercising of the profession, trade or activity from twelve to fifteen months.
2. If the guilty of sexual harassment had committed the fact prevailing itself of a situation of work, teaching or hierarchical superiority, or upon a person subject to guard or custody, or by announcing expressly or tacitly the causing to the victim of a harm related with the legitimate expectations which it may have in the ambit of the indicated relationship, the punishment will be of imprisonment from one to two years and special disqualification for exercising the profession, trade or activity from eighteen to twenty-four months.
3. Likewise, if the guilty of the sexual harassment had committed it at centers of protection or reform of minors, centers of internment of foreigners, or any other center of detention, custody or taking in, even of temporal stay, the punishment will be of imprisonment from one to two years and special disqualification for exercising profession, trade or activity from eighteen to twenty-four months, without prejudice of the stablished in the article 443.2.
4. When the victim is in a special situation of vulnerability for reason of its age, illness or physical handicap, the punishment will be imposed in its superior half.
5. When according to the stablished in the article 31 bis, a legal entity is liable of this crime, will be imposed to it the punishment of fine from six months to two years.
Taking into account the rules established in the article 66 bis, the judge and courts may impose too, the punishments gathered from the letters b) to g) of the point 7 of the article 33.”
As we already said in the introduction, in the first point of the article 184 is punished the basic type of the crime of sexual harassment. In it, we find the characteristic elements which define this crime, and to which we also referred before. The objective element of the type, is constituted by the request of sexual favors, either for itself or for a third party, being essential, that it takes place within a usual or continuous work, teaching or rendering of services relationship, and that this behavior may be regarded as grave, in a way which provokes in the victim a grave intimidating, humiliating or hostile situation. This gravity is what determines that the behavior should be punished in the penal ambit, and not in the civil or work ambit.
Regarding this request of sexual favors the Provincial Court of Salamanca´s sentence number 850/2022 says: “To that effect, the Spanish Supreme Court´s sentence of 16 April 2012 remembers that “the typical behavior consists in a direct and unequivocal request to the victim of behaviors whose administration correspond to itself in its sexual autonomy.
We should stress that this request does not need to be necessarily verbal, being enough with expressing it outwardly in a way which can be understood by the target of the request. And it is enough, for regarding the requesting behavior as typical that, it is nevertheless produced the refusal of the target. Therefore, the crime is consummated from its formulation, whatever it may be, if it is followed by the indicated effect, but without being necessary that it achieves its objectives. In fact, of being achieved, it may give rise to a liability of another penal type that, in the case which we try, have been excluded.”
Therefore, the request of sexual favors may be carried out in any way, verbal, by writing, or gestures, always that from this is understood the request. Besides, the crime will be consummated from the moment in which proposal of sexual favors takes place, always that in the victim is produced this grave intimidating, humiliating or hostile situation, without being, on the other hand, necessary that the sexual favors are materialized, for in these cases we will be before a crime of sexual aggression and not of sexual harassment, as consequence of the application of the principle of consumption of the article 8.3 CP, to which we referred before.
With regard to the requisite, that the request is carried out within a work, teaching or rendering of services relationship which should be continuous and usual, the Provincial Court of Luge´s sentence number 643/2022 says that: “However, according to the article 184 what has to be continuous or usual is the work, teaching or rendering of services relationship; not the request of sexual favors, without prejudice of assessing the criminal continuity if it is continuous.”
And the Provincial Court of Barcelona´s sentence number 9613/2022 says: “Lastly, the work punishment does not have anything to do with the principle “non bis in idem” since it is no manifestation of the ius puniendi of the state, and it does not suppose a double punishment, but the infringement of the norms of work relationship which, besides, have surpassed this ambit and reached the own personal freedom and dignity of the person who reported the crime.”
From the above two excerpts we can draw two consequences: 1) It is enough with existing a behavior which provokes in the victim, that grave intimidation or humiliation, for being before a crime of sexual harassment, for the continuity is demanded with respect to the work, teaching or rendering of services relationship within which is carried out the crime, and; 2) If the behavior which provokes the penal punishment, has been previously punished within the work ambit, there exist no infringement of the principle “no bis in idém”, for in such cases there has not been a use of the punitive capacity of the state.
Lastly, in relation with the requisite according to which the victim has to suffer a grave situation of intimidation or humiliation, the Provincial Court of Barcelona´s sentence number 6905/2022 says: “With regard to the result, the situation gravelly intimidation, hostile or humiliating, the penal type does not require according to the Spanish Supreme Court´s sentence number 349/2012 of 26 April that, “the victim has to succumb and suffer more problems than the mere location in the situation which deserves such qualifications. There exists, therefore, criminal liability, although the strength of the victim allows it to face without other harms the indicated situation. Indeed, it is not necessary that the victim has to suffer any kind of stress, for more than in the case which is being tried this concurs.”
Hence, in the article 184 CP is not demanded any kind of result in the health of the victim, with having suffered a grave situation of humiliation and intimidation it is enough.
With regard to the subjective element of the type, the article 184 demands that the author has to act with malice, in other words, knowing and wanting to carry out the objective elements of the type which we have already commented. We should take into account that, when we talk about malice, we also talk about the sort of eventual malice, it means that, it is enough with the fact that the author knows that probably its behavior will harm the protected legal good. Evidently, since it is not expressly stated in the article 184, this crime cannot be committed by imprudence.
Let us now talk about the second point of the article 184. In it, is increased the punishment envisaged in the basic type of sexual harassment of the first point, when a situation of abuse of superiority concurs and is materialized either in a situation of work, teaching or hierarchical superiority, or upon person subject to guard or custody, or with the announcement of causing to the victim a harm related within the ambit of such relation. Here we should mention, that the aggravating factor works independently from the basic type of sexual harassment described in the first point of the article 184, otherwise the principle non bis in idem would be infringed. There may exist sexual harassment, irrespective of whether there exists a situation of abuse of superiority, the import will be always that the behavior which attempt against the legal good protected is carried out within the ambit of a work, teaching or rendering of services relationship, being possible the existence of sexual harassment even between those who occupy the same hierarchical position. Regarding the above the Provincial Court of Lugo´s number 642/2022 says: “The ambit where must be carried out the main action of the type (the request of sexual favors) is an essential element of the type which we try, and it is the cause of its incorporation as penal type since the Penal Code of 1995, having been strongly qualified after the reform of 1999, to the point that the scientific doctrine has understood that has been typified as basic type the denominated environmental harassment, and not the one which constitutes abuse of superiority (when the guilty makes use of a situation of abuse of superiority), which is now regarded as a subtype aggravated, alongside the causal sexual harassment (that is, with the express or tacit announcement of causing a harm to the victim related with the legitimate expectations that that may have in the ambit of the mentioned relation). Such ambit, is defined by the legislator as a “work, teaching or rendering of services relationship, continuous or usual”. The basis of the denominated “environmental harassment” has to be sought in the greater protection which must be granted to the victims who are in one of such ambits, where the relationships are framed within a segment of greater danger for being subjected to treatments of sexual nature by their potential bullies, where will ordinarily concur some situation of superiority (but which the law does not demand), being also possible its typical consideration when the sexual harassment takes place between people of the same rank.”
The next point of which we should talk is the third. In it, like in the above point, are increased the punishments envisaged for the basic type of the sexual harassment envisaged in the first point. In this case, what provokes the increase of the punishment is the place where the sexual harassment takes place, centers of protection or reform of minors, centers of internment of foreigners, or any other center of detention, custody or taking in. But we have to take into account too, the said by the article 184.3 when it mentions the article 443.3, since it excludes of its ambit of application the scenarios in which the sexual favors have been requested by a public servant to an inmate. After that exclusion, thanks to the envisaged in the article 443.2, it seems that the application of the article 184.3 is limited to the cases in which the request of sexual favors is committed between public servants of the same center, or better, between workers of the same center irrespective of whether the work relationship which links them with the center.
Let us now talk of the fourth point of the article 184. In this fourth point, is imposed an additional rule to the established by the article 61 and following, for the imposition of the punishments. If the victim is in a special situation of vulnerability by reason of its age, illness or physical handicap, the punishment will be imposed in its superior half.
Lastly, the last point of which we have to talk is the fifth. In order to regard a legal entity as liable for a crime of the CP, this has to be expressly envisaged by the own code. That is what is doing the fifth point of the article 184. Although in my opinion the connection of the legal entity with the crime is not very clear, for in any of the scenarios envisaged by the article 31 bis for making a legal entity liable of a crime, is demanded that the crime should be committed in its the direct or indirect benefit, and it is not easy to imaging in which cases it may happen, perhaps when a person suffers sexual harassment for provoking its leaving, and this leaving benefits the legal entity in some way.
2) The differences of the crime of harassment or stalking (art. 172 ter CP), the crime of work harassment (art. 173.1 CP) and the special crime of sexual harassment of the article 443 CP, with the crime of sexual harassment (art. 184 CP):
The four crimes have in common that they are denominated as harassment by the doctrine or the own CP. However, there exists important differences which we should take into account for being able to distinguish them.
Let us star with the crime of harassment or stalking, without having most important motives to choose it as the first, than its position within the CP. The crime of harassment or stalking is located within the Title VI of the CP, a title dedicated to the crimes against the freedom, the Spanish Supreme Court´s sentence number 639/2022 of 23 June, has qualified the concrete legal good of the crime of harassment as “the individual freedom and the right to live peacefully and without anxieties”.
Here is where we find the first difference with the crime of sexual harassment, for the legal good protected in this is the sexual freedom, although the Spanish courts have considered that are also affected the right to intimacy (art. 18.1 CE) and the dignity inherent to all person (art. 10 CE).
The following we should analyze, are the characteristic elements of the crime of harassment or stalking, and for that we are going to make use of the Provincial Court of Burgos´s sentence number 1064/2022: “a.- As first element, there has to exist a harassment to one person carrying out insistent and repeatedly some of the behaviors described in the own article 172 ter of the Penal Code.
b.- As second element, the reiteration of behaviors has to be referred to any of the four modalities of commission defined in the own article 172 ter of the Penal Code: “Who watches one person, chases it or search it physical closeness. 2. Who establishes or tries to establish contact with it through any means of communication, or by means of third persons. 3. Who acquires products or goods or contracts services through the undue use of personal data, or makes that third persons enter into contact with it. 4. Who attempts against its freedom or patrimony, or against the liberty or patrimony of a person close to it.”
Later the same sentence says in relation with this crime: “In this first approaching to the new penal type, the Supreme Court establishes that the behavior for being a crime has to have vocation of being prolonged in the time, the enough for provoking an alteration in the daily life of the victim, as is said by the penal type, until the point that are not enough some episodes, more or less intenses or, more or less numerous but concentrated in a few days and without continuity, which besides, do not suppose an affectation in the habits of the victim.
…
Consequently, this crime is defined by the following features or elements: a) The activity has to be insistent. b) It has to be reiterated. c) As negative element of the type it is demanded that the active subject is not legitimately authorized to do it. d) It has to provoke a grave alteration in the life of the victim.
Certainly, the penal type does not concrete the number of intrusive acts which may give rise to the penal type, but they have to fulfill two requisites: a) Repetitive in the moment into which it is initiated. b) Reiterative in the time, for being repeated in different sequences in different times.
To this we have to add the consequence that this provokes a grave alteration in the daily life. For that must be understood something qualitatively superior to the mere troubles. Though the penal type is not precise, it is obvious that it is a crime of result insofar as it is demanded that the referred behaviors directly cause a transcendent limitation in some of the aspects integrating the freedom to do of the passive subject, either in the capacity to decide, or in the capacity of acting according to the already decided.”
Let us now try to sum up what we have just saw:
– In the crime of harassment or staling the legal good protected is the freedom, while in the crime of sexual harassment is the sexual freedom.
– In the crime of harassment or stalking, have to be carried out repeatedly and insistently some of the four behaviors described in the article 173 ter, altering gravelly the daily life of the victim. In the case of the crime of sexual harassment of the CP, the behaviors which may give rise to the commission of the crime are not enumerated, and therefore, they are an open list. Besides, in the crime of sexual harassment is not demanded that these behaviors have to be carried out repeatedly, being enough with carrying out the behavior described in the criminal type one time for understanding that the crime has been consummated, always that through such behavior has been created in the victim this feeling of grave humiliation or intimidation, and without being necessary either that this entails a grave alteration of the daily life of the victim.
Following their location within the CP, the next article we have to talk about is the crime of work harassment, typified in the article 173.1 CP, which says: “With the same punishment will be punished those who, in the ambit of any work relationship, including public servants, and making use of their relationship of superiority, repeatedly make against other hostile or humiliating acts which, without being degrading treatment, suppose grave harassment against the victim.”
In the case of the crime of work harassment, the legal good protected will be the moral integrity, which according to the Provincial Court of Palencia´s sentence number 5/2023 has been interpreted by the Supreme Court as “the right of the person to not suffer feelings of pain or humiliating or degrading physical or psychical sufferings, this is the right of not being subjected to methods or procedures which provokes a sensation of humiliation in the person which makes it to lose such consideration for being reduced to the condition of mere thing provoking a sensation of grave discomfort or anguish.”
The crime of work harassment, is included within the article 173.1 CP along the crime of degrading treatment. However, between both crimes there exist two important differences, in the case of work harassment is punished the behavior even when this does not have the enough intensity as for being considered degrading treatment, but in exchange of that, it is demanded reiteration in the behavior, something which does not happen with the crime of degrading treatment, for only one act can be regarded as a crime if it is of enough intensity as for affecting the legal good protected, the moral integrity. To these effects, a degrading treatment is defined by the Spanish Supreme Court´s sentence of 23 March 1993, as “the reduction of a person to the condition of object, of bundle, of mere thing, the use of it for the enjoyment of the people, its annulation as free person, negative, in short, of its dignity of man.”
According to the Provincial Court of Barcelona´s resolution 2218/2022: “The typical behavior consists in a phycological harassment developed in the framework of a work relationship, including public servants, which humiliates to who suffers it, imposing situation of grave offense to the dignity. It suppose, therefore, a degrading or hostile treatment to which is subjected a person in the work ambit systematically.
This crime requires as typical elements the following: a) To subject to another to hostile or humiliating acts, without being degrading treatment; b) That is acts are carried out repeatedly; c) That they are executed in the ambit of any relationship of superiority, and e) That such acts have the characteristic of grave (Spanish Supreme Court´s sentence number 649/2018 of 21 December).”
If we compare such requisites, with those we have already seen and which define the sexual harassment, we see that:
– The objective element of the type of work harassment is constituted by the fact of subjecting the victim to hostile or humiliating acts, without being regarded as degrading treatment. While the crime of sexual harassment, consists in requesting sexual favors to the victim of the crime.
– In the crime of work harassment, it is demanded that the behavior attempting against the moral integrity has to be carried out repeatedly. While in the crime of sexual harassment, only one act may be regarded as crime, if it fulfills the objective and subjective elements of the type.
– In the case of the crime of work harassment, its ambit is limited to a work relationship, including public servants. While in the case of the crime of sexual harassment, this ambit is extended to the work, teaching and rendering of services relationship.
– Within such ambits, in the case of the crime of work harassment, it is demanded that this is committed making use of a relationship of superiority. While in the case of the sexual harassment, the crime can be committed between person occupying the same hierarchical position, and the making use of a relationship of superiority will work as an aggravating factor.
Let us now talk about the article 443 CP. In it is punished the behavior which consists in the request of sexual favors, however, it differs from the article 184, in the special features of the active subject and its relationship with the passive subject. In the first point of the article 443, the active subject has to be a public servant, and the passive subject has to depend of it as consequence of some function inherent to its charge. In the second point of the article 443, the active subject of the crime has to be a public servant of an internment facility, and the passive subject an inmate. And finally, in the third point of the article 443, the active subject has to be family of the passive subject. Therefore, between the crimes of the article 184 and the crimes of the article 443 there exists a relation of concurrence of norms, where the special precept has to be applied with preference to the general (art. 8.1 CP), in other words, the behavior has to be punished through the application of the article 443, for in the case of being applied both articles, the 184 and 443, for punishing the same facts, the principle of non bis in idem would be infringed.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com