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“Of the crimes of exhibitionism and sexual provocation” is how is entitled the Chapter IV of the Title VIII of the Book II of the Spanish Penal Code (CP). It is a chapter which is made up of only two articles, an article 185 about the crime of exhibitionism and an article 186 about the crime of sexual provocation. Both affect the same legal good, the sexual indemnity of the minors, something implicit by the location within the Title VIII, and both, although wholly different crimes, can be regarded as crimes of sexual provocation by the objective elements which form part of their respective penal types.
1) The crimes of exhibitionism and of sexual provocation:
As we have previously indicated at the beginning, the crimes of exhibitionism and of sexual provocation affect to the same legal good, the sexual indemnity of the minor, broadly understood as the right not to be present during behaviors of marked sexual character which may harm its development, being even able to cause traumas or another type of unerasable marks which accompanied it the rest of its life.
Even though, the legal good protected is the same, and even though, both behaviors may be regarded in broad terms as crimes of sexual provocation. It is not less true, that both crimes describe wholly different behaviors, this is why we are going to follow the order proposed by the CP and start explaining in which consists the crime of exhibitionism for later talking about the crime of sexual provocation.
The crime of exhibitionism is regulated in the article 185 of the CP, which says:
“Article 185:
Who executes or makes to execute another person acts of obscene exhibition before minors of age or handicapped persons needed of special protection, will be punished with the punishment of imprisonment from six months to one year or fine from twelve to twenty-four months.”
As we can see it is a simple penal type, it is not complex for either its content or extension. Is punished who executes or makes to execute, acts of obscene exhibition before minors of age or handicapped persons. At first sight, calls our attention the fact that, the authorship of the crime is extended to those who execute the acts of exhibitionism by their own and to those who makes another person to execute them, something which is not essential, although it gives clarity to the scope of the precept, for the article 28 CP understands as authors those who execute the fact by their own, jointly or by means of another who they use as a tool, adding to them the necessary cooperators and the instigators. Therefore, we should understand that the authorship of the crime of exhibitionism has to be also extended to all those cases not expressly mentioned by the article 185, but which appear in the article 28, like the necessary cooperators.
Another important aspect is that, the penal type of exhibitionism does not punish any act of exhibitionism but only those which may be regarded as obscene. Here is where we find the main problem to interpret the type, for solving it, as always, we have to attend to what has been said by the Spanish courts, and regarding this they have been clear, the acts of obscene exhibitionism are those which imply the exhibition of genitals. The Provincial Court of Albacete ´s sentence number 943/2022 quoting an excerpt from the Spanish Supreme Court´s sentence of 31 March 2022, says: “The Spanish Supreme Court´s sentences of 17 October, 2 November 1988 and 27 February 1989 point out that, “constitute this crime the intentional and selective exhibition of genitals, especially if it is accompanied of gestures or words of undoubtedly lustful meaning.” And it is enough with the fact that the passive subject has seen the acts imposed by the author for its sexual satisfaction, since from that moment there has existed a harm to the legal good (Spanish Supreme Court´s sentence of 9 March 1989).” Or the Spanish Provincial Court of Caceres´s sentence number 18/20123, which says: “The Spanish Supreme Court´s sentence number 449/10 points out that the crime of exhibitionism requires necessarily the action of showing to another the genital organs, although it is not accompanied of lustful acts, masturbation, or any other similar act…
The type does not require, as the Supreme Court has stressed in various sentences, that the acts of exhibition have to have publicity or public impact, being enough with having the minor seen the acts imposed by the author for its sexual satisfaction, since from that moment there has already existed a harm to the legal good (Spanish Supreme Court´s sentence of 9 March 1989). But in any case, it requires for its application to the tried acts, the exhibition of the sexual organ by the accused (Spanish Provincial Court of Madrid´s sentence of 16 December 2013)”.
It transforms the crime of exhibition into a crime of mere activity, it is enough with executing the action described in the type, to carry out acts of obscene exhibition or make that another carries them out, for understanding fulfilled the objective elements of the type, moreover, it is not necessary that these acts of obscene exhibition have a concrete result upon the victim, as the affectation to its psychic health or the creation of a trauma.
Besides, the acts of obscene exhibition have to be carried out before a person who is minor of age, that implies that when the crime was committed it has to be under the eighteen years of age (art. 12 of the Spanish Constitution). This broadens the ambit of protection granted with respect to the crime of sexual aggression to minors under sixteen years of age, for in such cases it is understood that from that age onward its consent transforms into licit acts which otherwise would be punished by the law, something which does not happen with the crime of exhibitionism. We cannot forget either, that exists the possibility that this crime is committed before handicapped persons need of special protection, which implies that in their case, there exists no range of age which decriminalizes the acts.
If as we have already seen, the objective element of the crime of exhibitionism is constituted by an act of obscene exhibition before minors of age or handicapped persons, the subjective element of the type requires the concurrence of malice, it needs that the author carries out the facts knowing and wanting the objective elements of the type. Although we cannot dismiss the possibility that, this subjective element could also be fulfilled when there exists eventual malice, in other words, when the author of the crime previously knows or during its commission, that with all probability its acts will give rise to the carrying out of the objective elements of the type. The possibility which must be dismissed, is its commission by imprudence, since for that it has to be expressly mentioned in the own article 185 CP (art. 12 CP), something which does not happen.
Let us now talk about the crime of sexual provocation. The crime of sexual provocation is regulated in the article 186 CP, which says:
“Article 186.
Who by any direct means, sells, diffuses or exhibits pornographic material among minors of age or handicapped persons needed of special protection, will be punished with the punishment of imprisonment from six months to one year or fine from twelve to twenty-four months.”
Although at first sight, may be regarded that the penal type is well described, the best we can do is to review its elements with the help of the Provincial Court of Barcelona´s sentence number 8250/2022:
“The requisites and behaviors which shape the crime of sexual provocation of the article 186, like the Spanish Supreme Court´s sentence 826/2017 of 14 December says, are:
*The diffusion, selling or exhibition of material regardable as pornographic. To diffuse is equivalent to to divulge among a plurality of persons, to sell to to dispose in exchange for a price or another economic compensation, and to exhibit to to show to the passive subject the corresponding pornographic material.
* The commissive mechanic of the crime allows that such behavior is carried out by any direct means, it supposes that the minor has to be physically present in the behavior of diffusion, selling or exhibition, demanding from a legal perspective the direct confrontation of both subjects.
* That the targets of the action have to be minors of age or handicapped persons needed of special protection.
* That the behavior has to be malicious or intentional, not being demanded, a subjective element of unjust especially determined, like attempting against the development or education of the targets, though that aim is implicit within the penal reproach in which is based the precept.”
This excerpt has clarified to us many doubts: the definitions of the different behaviors, what is understood for carrying out the action by direct means, who has to be the target of the action and the subjective element of the type. Among them, calls our attention the explication of this direct means of commission, for on the grounds of this definition we can exclude a way of commission which applies to the crime of child pornography of the article 179, the sharing of pornographic material through P2P computer programs like the Emule. We should understand that, for being applicable the article 186, at the acts of selling, diffusion or exhibition have to be physically present both, the author of the crime and the victim.
Among the requisites mentioned this sentence, we miss a definition of pornography, nevertheless we can make use of the given by the Real Spanish Academy´s Spanish dictionary of language, which defines it as the “Open and raw presentation of the sex which seeks to produce excitation.”
On the other hand, if we compare the wording of the article 185 with the wording of the article 186, we see that this last scenario is not extended the authorship of the crime to the cases in which a subject induces into other its commission. But, we cannot let us be deceived by that, here, like in the crime of exhibitionism, are also of application the general rules of authorship of the article 28.
2) The concurrence of norms between the crimes of exhibitionism or sexual provocation and the crime of sexual aggression (art. 178 and following or art. 181 and following CP):
We have already revealed it with the simple title of this point, in the case of concurrence between the crimes of exhibitionism or sexual provocation and the crime of sexual aggression, irrespective of whether it is upon minors under sixteen years old or not, there exists a concurrence of norms which will be resolved through the application of the article 8.3 CP, being punished the facts as sexual aggression.
To underpin what we have just seen, we can mention a couple of examples:
– Spanish Provincial Court of Palma de Mallorca´s sentence number 288/2023: “Departing from the doctrine exposed, taking into account the particularities of the case and the account of the minor which we have given as proven, the behavior of exhibitionism qualified by the accusations and which fits within the article 185 CP, we understand that it is integrated in the crime of sexual aggression which we have examined before, for punishing all the desvalue of the acts executed by the accused and which would be, in the present case, an scenario of criminal progression, therefore we have to acquit him for the crime of exhibitionism of which it has been accused.”
– Spanish Provincial Court of Barcelona´s sentence number 8250/2022: “Moreover, it is doctrine of the jurisprudence of our High Court that when the exhibition of such material is within the framework of the own acts of the crime of abuse (or sexual aggression) the exhibition is integrated in it, being applied between both the concurrence of norms of the article 8.3 CP. But this is not extendable to the case in which carried out the behavior punished in the current art. 186 CP, it is not produced the abuse or aggression, in whose case it will be punished independently as such crime. In this regard, the Spanish Supreme Court´s sentence number 449/2010, expressly quoted, reiterating doctrine, in the recent Spanish Supreme Court´s resolution number 513/2001 of 17 June, “being two criminal figures integrated in the same title of the Penal Code, under the title of crimes against the liberty and sexual indemnity, in both cases are behaviors which negatively affect to the same legal good protected, 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 carried out the behavior will be subsumed in the crime of exhibitionism.”
3) The continuous crimes of exhibitionism and of sexual provocation:
It is possible that, in determined occasions, the same subject commits both crimes against the same victim. Furthermore, it is possible that the same subject commits in various occasions both crimes against the same victim. In both cases, the logical would be to think that we are before a concurrence of crimes (art. 73 CP). However, this has not been the criteria followed by the Spanish Supreme Court in its recent sentence number 191/2023. In it, in a scenario of criminal continuity of the crimes of exhibitionism and of sexual provocation, the same passive and active subject and the same opportunity with the same malice, have been punished both behaviors as only one continuous crime of sexual provocation for different reasons, like for being placed in the same chapter of the CP, having the same punishment, or being both sexual provocations.
This is an excerpt from the sentence mentioned: “Both infringements are part of the Chapter IV of the Title VIII of the Book II of the Spanish Penal Code whose title is “Of the crimes of exhibition and sexual provocation.” It may be considered that the article 185 CP contemplates the crime of exhibitionism and the article 186 CP the crime of sexual provocation. While both crimes contemplate actions of obscene or pornographic exhibitionism, however, none of them makes any reference to the sexual provocation. Nevertheless, both crimes, punished with the same punishment, entail the sexual provocation, since the execution of exhibitionist acts and the diffusion of pornography among minors, suppose the carrying out of acts of a sexual content and goal of provocative character.
Consequently, taking into account the proven facts, it can be proved that the acts of exhibitionism carried out by the accused before the minor and the exhibition of the videos where he appears having sexual relations with his wife constitute in both cases acts of sexual provocation which should be integrated in one only continuous crime of sexual provocation in the person of Herminia.
Consequently, with that has to be esteemed in part the appeal in the sense that the continuous crime of exhibitionism and the continuous crime of sexual provocation in the person of Hermina should be integrated in one only continuous crime of exhibitionism and sexual provocation.”
Víctor López Camacho
Twitter: @victorsuperlope. More on my website: www.victorlopezcamacho.com