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“Of the crimes concerning to the prostitution and the sexual exploitation and corruption of minors”, is how is titled the Chapter V of the Title VIII of the Book II of the Spanish Penal Code (CP). As we can infer from its location, it is a crime which attempts against the legal good sexual freedom of the victim, and although later there exists a Chapter VI, this is concerning to the common dispositions of the above chapters, thereby we can consider that the crimes contemplated in this Chapter V, are the last sexual aggressions of the Title VIII.
It is a complex chapter, which comprehends various kinds of crimes and with five articles. Nevertheless, we are obliged to add certain complexity to it, since we are going to talk about certain points corresponding to the Spanish Criminal Procedural Act (LECrim), and about other matters related with the crimes which will be commented, like the possible concurrence of either crimes or norms which may exist.
In order to comment the article 189, we are going to make use above all of the Circular 2/2015, of 19 June, about the crimes of child pornography after the reform carried out by the Organic Law 1/2015 (Circular 2/2015). From it we are going to try to extract its more important features, something which in many cases will suppose summing up its content.
1) The crimes of the Chapter V of the Title VIII of the Book II of the CP:
We cannot start in a different way, the first point of this article, leaving aside the above introduction, is about each of the crimes contemplated in the Chapter V. We are not bold enough to alter their order either, thus we are going to follow the proposed by the CP.
Article 187:
The first of them is the crime of prostitution of the article 187.1, aimed only to adults, since the crime of prostitution of minors has its own article, the article 188, and which is punished in two different ways, either the coercive prostitution or the voluntary when some requisites are met. In the second point of the article 187, are included three aggravating factors. And in its last and third point, a rule to resolve the concurrence of the crime of prostitution with the crime of sexual aggression.
Let us now see, what is exactly the content of the article 187:
“Article 187:
1. Who, employing violence, intimidation or deceit, or abusing of a situation of superiority or of necessity or vulnerability of the victim, determines an adult person to exercise or continue in the prostitution, will be punished with the punishments of imprisonment from two to five years and fine from twelve to twenty-four months.
The punishment of imprisonment from two to four years and fine from twelve to twenty-four months will be imposed upon who obtains a benefit from the exploitation of the prostitution of another person, even with its consent. In any case, there will be understood that there is exploitation when any of the following circumstances concur:
a) That the victim is in a situation of personal or economic vulnerability.
b) That are imposed to the victim costly, disproportionate or abusive conditions.
2. The punishments envisaged in the above points will be imposed in its superior half, in their respective cases, when any of the following circumstances concur:
a) When the guilty has made use of its condition of authority, agent of this or public servant.
b) When the guilty pertains to an organization or criminal group which carries out such activities.
c) When the guilty has put into risk, in a malicious way or for grave imprudence, either the life or health of the victim.
3. The punishments pointed out will be imposed in their respective cases without prejudice of those which correspond for the aggressions or sexual abuses committed upon the prostituted person.”
The first question to resolve, is the legal good protected by the norm, it is easy, in fact we have already solved it in the introduction, it is the indemnity and sexual freedom of the victim, understood as its right not to be subjected to sexual behaviors without its consent freely given. A right which is intimately related, with the right to the dignity of the person recognized in the article 10 of the Spanish Constitution (CE). Due to the fact that, it is a personal right there will be as much crimes as adults had been determined to exercise or continue in the prostitution, or persons are exploited with their prostitution.
The objective type of the crime, is constituted by two different behaviors, one exposed in the first paragraph of the article 187.1 and the other in the second paragraph of the same article. The first consists in, “Who, employing violence, intimidation or deceit, or abusing of a situation of superiority or of necessity or vulnerability of the victim, determines an adult person to exercise or continue in the prostitution.”
In this case, the typical behavior consists in determining an adult to exercise the prostitution. Regarding the means for committing the crime, the Provincial Court of Almerias´s sentence number 1397/2022 says: “The first three means for committing the crime, violence, intimidation or deceit, can be multiple and of different kind; the first is equivalent to physical force, directly exercised upon the victim or aimed to creating in it a state of fear to suffer maltreatment in the future if it does not exercise the prostitution, in other words, the so-called compelling vis, while the second corresponds with the physical or moral strength, in other words, the threats in strict sense or the exercise of some kind of strength upon the things; the third is synonymous of either fraud or fraudulent scheme. Along them are added different ways of abuse, which are not but specific relations of prevailing the active subject upon the victim, and which may spring, either in a situation of superiority with respect to it (for example hierarchical superior) or for its specific vulnerability (as consequence of its short age, illness or similar condition), according to a specific doctrine of which is exponent the Spanish Supreme Court´s sentence number 568/2016 of 28 June. The Spanish Supreme Court´s sentence of 15 February 2019 considers as typical coercive modality the retention of the passport until the moment the debt allegedly owed by the victim is amortized, as well as the employment “ways of fact” as the control of each of the “services” rendered by the women, the watching of their leavings to the city, their driving through a van to the club and, above all, the threats of economical sanction, if they do not work with the excuse of the menstruation or another.”
The second typical behavior, is the contemplated in the second paragraph of the article 187.1, and consists in obtaining a benefit from the sexual exploitation of a person, even with its consent. In order to determine in which scenarios there exists exploitation, are expressly mentioned two circumstances as presumption “iuris et de iure”: a) That the victim is in a situation of personal or economic vulnerability, and; b) That are imposed to the victim costly, disproportionate or abusive conditions.”
If we read carefully both scenarios, they may seem confused, because they seem to punish the same behavior, for who through violence, intimidation or deceit, or abusing of a situation of superiority, determines a person to the exercise of the prostitution, the logical is that that person is also obtaining a benefit from the exploitation of its prostitution. However, the first scenario is more severely punished, besides, in all the ways of committing the crime the will of the victim is tainted, on the contrary for the second scenario the punishment is less severe and applies even when the victim has willingly accepted to exercise the prostitution. Thus, the first scenario seems to be reserved to all those cases in which the victim exercised the prostitution against its will or when it is tainted, and the second for when it freely exercises the prostitution. What is clear is that, the same behavior cannot be punished two time, one according to the first paragraph of the article 187.1 and another according to the second of the same precept, otherwise the principle non bis in ídem would be infringed, according to which a subject cannot be punished more than one time for the same facts.
For both typical behaviors, the subjective element of the type will be constituted by the malice of the active subject, at least in its eventual modality. There will exist direct malice when the active subject knows and want the objective elements of the type, and eventual malice when it knows that with all probability its behavior will give rise to the objective elements of the type.
Let us now talk about the second point of the article 187. In it, are established three aggravated subtypes, taking into account that the basic types are those of the first point. They entail the imposing of any of the two punishments envisaged in the first point, in its superior half. As we already said there are three different types of aggravated subtypes: a) When the guilty has made use of its condition of authority, agent of this or public servant; b) When the guilty pertains to an organization or criminal group which carries out such activities, and; c) When the guilty has put into risk, in a malicious way or for grave imprudence, either the life or health of the victim.
Let us carefully analyze the last two. That the guilty pertains to a criminal group or organization, is an aggravated subtype which will enter into a concurrence of norms with the types of Chapter VI of the Title XXII of the Book II, of the criminal group or organizations or, in its case, with the crime of illicit association of the article 515.1º. In any case, like the Circular 2/2015 points out when it talks about such aggravated subtype although in relation to the crime of child pornography of the article 189, this has to be solved by application of the rule envisaged in the art. 8.4º, since the second paragraph of the second point of the art. 570 quarter CP opts for this option. Therefore, in these cases for determining which is the gravest punishment, we have to compere the punishments envisaged in the first and second paragraph of the art. 187.1 CP, (from two to five years and from two to four years of imprisonment respectively), with those which result from applying the types of the article 570 bis, or in its case of the article 570 ter CP, and the crime of prostitution (basic type or aggravated type if concurs any other aggravating circumstance different to the pertaining to criminal organization or group, otherwise the principle non bis in idem would be infringed). In order to calculate the punishment in the last case, we will have to take into account that the concurrence of crimes between the crime of prostitution and the crime of criminal organization or group, may be real or ideal, depending on the concurring circumstances of the case.
With respect to the third aggravated subtype, “When the guilty has put into risk, in a malicious way or for grave imprudence, either the life or health of the victim.” It is a type of mere activity, which will be punished regardless to the malicious or imprudent crime which had been provoked.
It is the turn of talking of the third and last point of the article 187. In it, is expressly established the existence of a concurrence of crimes and not of norms, when the crime of prostitution concurs along the crime of sexual aggression. This entails, the application of either the article 73 CP or 77 CP, depending on the circumstances of the case.
Once we have achieved this point, we should continue taking of the rest of concurrence of crimes which may exist between the crime of prostitution and other crimes. Leaving aside the crime of sexual aggression which we mentioned above, there may exist other crimes along which concur the crimes of prostitution mentioned in the first and second paragraph of the article 187.1 CP. Two basic examples will be, the crime of human trafficking (art. 177 bis CP) and the crime of illegal detention (art. 163 CP). Let us see each of these examples.
For the crime of human trafficking (art. 177 bis CP), we have to start from the said by the ninth point of the article 177 bis, “the punishments envisaged in this article will be imposed without prejudice of those which correspond, in their case, for the crime of the article 318 bis of this Code and the rest of the crimes committed, including those which constitute the corresponding exploitation.”
Therefore, we have to understand that the crime of human trafficking will usually concur with the commission of others, with which will have a relation of either a real concurrence of crimes of the article 73 CP, in which case each crime should be punished separately, or a medial concurrence of crimes of the article 77, when the human trafficking is the means to carry out another crime.
Within the first scenario, the real concurrence of crimes of the article 73, the crime which usually will concur along the crime of human trafficking is the crime of illegal immigration of the article 318 bis. But we cannot dismiss the concurrence of other crimes, as a crime of injuries.
In the second group, the medial concurrence of crimes of the article 77, the crime which will often concur along the crime of human trafficking will be the crime of prostitution of the article 187. In these cases the courts have established the existence of a medial concurrence of crimes and not real, since they consider that although the article 177 bis gathers as one of the specific ends of the human trafficking the sexual exploitation, this does not wholly cover the desvalue of the action when this exploitation is effectively carried out, and besides, there exists this characteristic relation of the article 77, in which a crime is the necessary means, the human trafficking, for committing another, the sexual exploitation.
As always let us try to complete what we have just seen, with two excerpts from sentences which can help us to underpin it:
– Provincial Court of Salamanca ́s sentence 923/2022:
a) About the existence of a real concurrence of crimes between the crime of illegal immigration and the corresponding crime of human trafficking, departing from the fact that for the human trafficking it is not necessary the previous infringement of the immigration controls, in a fraudulent way… Our Supreme Court Sentence number 430/2019 of 27 September already established the possibility of a concurrence of crimes between the crimes against the right of the foreign citizens for illegal immigration, in a real concurrence of crimes with a crime of human trafficking with ends of sexual exploitation committed by organization or association, and a medial concurrence of crimes with a crime of coercive prostitution.The same we have declared in the Supreme Court Sentence number 396/2019 of 24 July. The Supreme Court Sentence number 861/2015 of 20 December, declares that is usual relation between the human trafficking and the crime of prostitution, to be in a medial concurrence of crimes.
The same results from the ninth point of the article 177 bis of the Penal Code, for the punishments envisaged in such article has to be imposed without prejudice of those which correspond, in their case, for the crime of the article 318 bis of this Code and the rest of the crimes effectively committed, including those which constitute the corresponding exploitation.
– Provincial Court of Oviedo ́s sentence 2455/2022:
The Spanish Supreme Court ́s sentence number 845/2021 of 4 November, which talks about facts analogous to the present, declares that “From the lecture of the art. 177 bis 1 CP results that one of the typical ends is the sexual exploitation, being doctrine of this Chamber that the sanction for this crime does not absorb all the gravity of the behavior when effectively takes place such exploitation, opting, as a general rule, in the cases of concurrence of crimes between this crime and the relatives to the prostitution, for the solution of the medial concurrence of crimes, insofar as being consummated such end of sexual exploitation, the crime of the article 177 bis would be a previous instrument of such end crime, which makes suitable to apply, the rule envisaged in the art. 77.1 for the denominated medial concurrence of crimes. The art. 77.3 of the Penal Code establishes the way in which has to be set the punishment in the cases of a medial concurrence of crimes: “In the second, will be imposed a superior punishment to which would have corresponded, in the concrete case, for the gravest infringement, and which cannot exceed of the sum of the concrete punishments which would have been imposed separately for each one of the crimes. Within these limits, the judge or court will individualize the punishment according to the criterio expressed in the article 66. In any case, the punishment imposed cannot exceed the limit of duration envisaged in the above article.””
Another concurrence of crimes which may be appreciated is when the crime of prostitution, in this case only the coercive prostitution (art. 187.1 CP), concurs along the crime of illegal detention (art. 163 CP), since in those cases there exist a medial concurrence of crimes (art. 77 CP). Usually, the possible privations of freedom which may exist during the crime of coercive prostitution, will be subsumed in it, for being of so little importance for being appreciated independently. Nevertheless, when these privations of freedom acquire their own entity due to their intensity, both crimes should be punished independently, although in the form of a medial concurrence of crimes, since one, the illegal detention, is the necessary means for committing the other, the coercive prostitution. Let us see an example:
– Provincial Court of Almeria´s sentence number 1397/2022:
“Both figures should be appreciated independently and in a medial concurrence of crimes. A the Spanish Supreme Court´s sentence number 568/2016 of 28 June, clarifies, quoting many others, “although in general has to be considered that in the field of the coercive prostitution there exist minor manifestations of the ambulatory restrictions directly related with the behavior of prostitution, which should be absorbed by the crime of prostitution (Spanish Supreme Court´s sentences number 1397/2001 of 11 July and 2205/2002 of 30 January 2003), it is the true that in the individual exam, case by case, which is the essence of all activity of trying, may be found cases in which is appreciable a greater degree of ambulatory restraint qualitatively more intense which exceeds and surpasses to the derived from the coercive prostitution. In such case, we are before the existence of a crime of illegal detention, autonomous. Regarding to the crime of prostitution, such autonomy may exist in the cases where the persons who exploit the alien prostitution have a permanent control upon its victim, compatible with a minimum ambulatory capacity which is not ambulatory freedom “strictu sensu” for referring to foreign persons which are in the situation which has been related. In these cases, there exists an extra of control upon the woman –which usually is the victim—which exceeds and for a lot the necessary for its activity in the prostitution. There appears the attack to another different legal good, the freedom of movement.”
Once we have analyzed, the more probable cases of concurrence of crimes, we have to study the scenarios of continuous crimes (art. 74 CP). Due to the type of behavior which form part of the crime of prostitution, either coercive or voluntary, our courts have decided to dismiss the possibility of continuous crimes, all the acts which fulfill the objective elements of the type and which have as objective the same passive subject, will constitute the same no continuous crime. Let us see another example:
– Provincial Court of Almeria´s sentence number 1397/2022:
“4. Regarding the continuity in the crime of corruption of minors of the article 188.4 CP, in the jurisprudence is usually made reference to the demand of reiteration in the behavior of the author with the goal that its acts affect to the sexual indemnity of the minor, legal good which protects the penal norm, (Spanish Supreme Court´s sentence number 465/2016 of 31 May). The structure of the types regulated in the articles 187 and 188 hardly consist in continuous crimes, since they are crimes of tendency or simple activity, in a way that the typical behavior comprehends all the acts which can have carried out for favoring or provoking the inducing or favoring effect of the corruption or prostitution of a minor.
Each passive subject can integrate a crime, but all the acts which are aimed to one subject, will constitute a no continuous crime (Spanish Supreme Court´s sentence number 809/2016 of 18 July). Thus, the reiteration of acts, except exceptional cases in which can be affirmed that one only act fills the requisites of the type, normally constitute the behavior which is intended to punish with this crime and excludes, when is not enough explained or motivated the contrary, which may be applied the continuous crime (Spanish Supreme Court´s sentence number 465/2016, quoted above).
In the end, as is reasoned in the recent Spanish Supreme Court´s sentence number 181/2021 or 2 March, the criminal continuity regarding the crime of prostitution (art. 188.4 CP), is certainly a debatable question. “In reality the types which are described in the above paragraphs of this norm (art. 188) evoke a legal good protected which is not suitable for diversification in actions with capacity for giving rise to the continuity. They evoke a persistent behavior more than isolated acts. Argument additional which forbids the possibility of the continuity is the precept which establishes the punishment of the sexual crimes committed separately. Within the framework of the sexual crimes, on the contrary, the legal good protected (sexual indemnity) is more suitable for identifying autonomous sexual aggressions which, in the case of being plural, will be a continuous crime. If we talk about corruption the field is more favorable for understanding that the different actions affect upon the same and only corrupting effect, more or less intense, but not atomizable, although it is prolonged with reiteration of actions (not attended requests in this case).
The greater desvalue derived of the repetition of the actions accompanied of sexual contacts would be already punished by punishing separately the sexual abuse.”
Article 188:
In the article 188, we find the version aimed to the minors of age of the article 187. Notwithstanding, there exist certain particularities between them. Let us see what is said by the article 188, for later analyzing its content:
“Article 188:
1. Who induces, promotes, favors or facilitates the prostitution of a minor of age or a handicapped person needed of special protection, or obtains a benefit from it, o exploits in any other way the minor or a handicapped person for these goals, will be punished with the punishments of imprisonment from two to five years and fine from twelve to twenty-four months.
If the victim is a minor under sixteen years of age, will be imposed the punishment of imprisonment from four to eight years and fine from twelve to twenty-four months.
2. If the facts described in the above point are committed with violence or intimidation, besides the punishments of fine envisaged, will be imposed the punishment of imprisonment from five to ten years if the victim is a minor under sixteen years of age, and the punishment of imprisonment from four to six years in the rest of the cases.
3. Will be imposed the punishments superior in degree to the envisaged in the above points, in their respective cases, when any of the following circumstances concur:
a) When the victim is in a situation of special vulnerability for reason of its age, illness, disability or any other circumstance.
b) When, for the execution of the crime, the liable has made use of a situation of cohabitation or of a relation of superiority or kinship, for being ascendant, or brother, for nature or adoption, or akin, with the victim.
c) When, for the execution of the crime, the liable has made use of its condition of authority, agent of this or public servant. In this case will be imposed, besides, a punishment of absolute disqualification from six to twelve years.
d) When the guilty has put into risk, in a malicious way or for grave imprudence, the life or health of the victim.
e) When the facts has been committed by the joint action of two or more persons.
f) When the guilty pertains to an organization or association, even of transitory character, which carries out that activities.
4. Who solicits, accepts or obtains, in exchange for a remuneration or promise, a sexual relation with a minor of age or a handicapped person needed of special protection, will be punished with a punishment from one to four years of imprisonment. If the minor had not reached the sixteen years of age, will be imposed a punishment from two to six years of imprisonment.
5. The punishments envisaged will be imposed in their respective cases without prejudice of what correspond for the infringements against the sexual freedom or indemnity committed upon the minors or handicapped persons needed of special protection.”
In the article 188 are described two behaviors, one which we can denominate as prostitution of minors, described in its first point, and other, that has been denominated by the jurisprudence as a crime of corruption of minors. In both cases, the same legal good will be affected, the sexual indemnity and freedom of the minor in a broad sense, for it preserves the right to a full development and formation of the minor, its future sexual freedom and its moral integrity. Being a personal legal good there will exist as much crimes of prostitution of minors as minors or handicapped persons had been exploited, or minors or handicapped persons had been corrupted.
The first of those behaviors consists in, “1. Who induces, promotes, favors or facilitates the prostitution of a minor of age or a handicapped person needed of special protection, or obtains a benefit from it, o exploits in any other way the minor or a handicapped person for these goals, will be punished with the punishments of imprisonment from two to five years and fine from twelve to twenty-four months.
If the victim is a minor under sixteen years of age, will be imposed the punishment of imprisonment from four to eight years and fine from twelve to twenty-four months.”
Therefore, the objective elements of the type are constituted by, inducing, promoting or favoring the prostitution of a minor of age or a handicapped person needed of special protection, or obtaining a benefit from it, or exploiting them in any other way for any of these goals. We can observe, that the first group of behaviors is really broad, as broad as for comprehending any behavior which provokes the prostitution of the minor. On the other hand, the second group, is aimed to all those cases in which is obtained a benefit, economical or not, from the sexual exploitation of a minor or handicapped person.
Regarding the subjective elements of the type, it is required that in the author concurs malice, at least in its eventual modality. In other words, it should know and want the objective elements of the type, or at least, to know that with all probability its behavior will make that they are fulfilled.
The punishments envisaged in the basic type, which is the envisaged in the first paragraph of the article 188.1, will be hardened: 1) When the victim is a minor under sixteen years of age, will be imposed a punishment of imprisonment from four to eight years (art. 188.1 second paragraph); 2) If the fact described are committed through violence or intimidation, will be imposed the punishment of imprisonment from five to ten years if the victim is a minor under sixteen years of age, and from four to six years in the rest of the cases (art. 188.2), and; 3) Will be imposed the punishment superior in degree with respect to the envisaged in the basic type, in the article 188.1 second paragraph and in the article 188.2, when any of the circumstances envisaged in the third paragraph of the article 188 concurs (art. 188.3).
Let us now try to give more information in relation to the second and third point. With regard to the violence the Provincial Court of Navarra´s sentence number 30/2023 says: “For violence has been understood the employment of physical strength, and like the Spanish Supreme Court´s sentence number 1546/2002 of 23 September recalls to us, there has been said that it is equivalent to physical attack, coercion or material imposition, and it implies a real aggression more or less violent, or by means of hits, shoves, tears, in other words, enough and effective strength for subjugating the will of the victim…” (Spanish Supreme Court´s sentence of 4 July 2019).
On the contrary, when we talk about intimidation, instead of being before a physical aggression, we are before a psychological aggression, the use of fear for subjugating the victim. Regarding the intimidation the Spanish Supreme Court´s sentence number 534/2023 says: “In the “intimidation”, compelling vis or psychological vis, it is compelled to yield to the lustful purposes of the agent through psychological coercion exercised upon the victim, and which supposes the announcement of an imminent and grave damage, personal and possible, rational and justified, which arouses or inspires in the offended a feeling of fear, anguish or distress before the contingency of a real or imaginary damage.” And later the same sentence adds, “The doctrine points out that the intimidation, according to the Spanish Royal Language Academy’s dictionary is equivalent to “causing or arousing fear”, it is the so-called psychological vis and consists in threatening with a damage with words, gestures or another procedure, which should provoke fear in the target, of which takes advantage the agent for committing the aggression.”
If we pay attention to the aggravated subtypes of the third point of the article 188, we see that three of them coincide with those of the article 187. Among these three, we underscore in such article two of them and repeat what we said in the article 187, although adapted to the article 188.
That the guilty pertains to a criminal group or organization, is an aggravated subtype which will enter into a concurrence of norms with the types of Chapter VI of the Title XXII of the Book II, of the criminal group or organizations or, in its case, with the crime of illicit association of the article 515.1º. In any case, like the Circular 2/2015 points out when it talks about such aggravated subtype although in relation to the crime of child pornography of the article 189, this has to be solved by application of the rule envisaged in the art. 8.4º, since the second paragraph of the second point of the art. 570 quarter CP opts for this option. Therefore, in these cases for determining which is the gravest punishment, we have to compere the punishments envisaged in the first and second point of the art. 188 CP, (from two to five years or from four to eight years and from five to ten years of imprisonment respectively), with those which result from applying the types of the article 570 bis, or in its case of the article 570 ter CP, and the crime of prostitution of minors (basic type or aggravated type if concurs any other aggravating circumstance different to the pertaining to criminal organization or group, otherwise the principle non bis in idem would be infringed). In order to calculate the punishment in the last case, we will have to take into account that the concurrence of crimes between the crime of prostitution of minors and the crime of criminal organization or group, may be real or ideal, depending on the concurring circumstances of the case.
With respect to the third aggravated subtype, “When the guilty had put into risk, in a malicious way or for grave imprudence, either the life or health of the victim.” It is a type of mere activity, which will be punished regardless to the malicious or imprudent crime which had been provoked.
In the fourth point of the article 188, we find the so-called crime of corruption of minors, to which affects neither the aggravated subtypes of the third point, nor the other two aggravating circumstances which we said affect to the basic type of prostitution of minors of the first point. In this case the objective type is constituted by “Who solicits, accepts or obtains, in exchange for a remuneration or promise, a sexual relation with a minor of age or a handicapped person needed of special protection.” Like is said by the Spanish Supreme Court´s sentence number 152/2023: “punishing the client who obtains (or requests) a sexual favor of a minor of age, without being necessary the connection of the behavior with the entering or maintaining of the victim in the situation of prostitution.”
Regarding the subjective type of the crime, it will require the existence of malice, at least in its eventual modality. On the other hand, the legal good protected will be, like the already mentioned Spanish Supreme Court´s sentence number 152/2023 says: “the sexual indemnity of the minor, indemnity which has to be understood in a sense fuller of content, for not only is intended to preserve the right to the full development and formation and socialization of the minor, as well as its future sexual freedom, but also its moral integrity, thereby the favoring or promoting of the prostitution supposes the reification of the prostituted.”
Let us see the last point of the article 188. This is the fifth, and it says something more or less similar to the said by the third point of the article 187. Between the crime of prostitution of minors or the crime of corruption of minors and any other crime which affects to the sexual indemnity and freedom of the minors and handicapped persons, there will exist a concurrence of crimes, probably real although we should carefully analyze each of the cases, and not of norms. As an example, we can mention the recent Spanish Supreme Court´s sentence 152/2023, which establishes the existence of a real concurrence of crimes (art. 73 CP), and not of norms, between a crime of corruption of minors and a crime of sexual aggression. The aforementioned sentence says: “In some occasions the accused did not achieved it, as in the case of Mariana and Laura, but it did achieve it in other cases, like with the minors Lucía, Lidia, Josefina and Macarena in which the examined crime is committed in concurrence with the crime of sexual abuses which the Spanish Supreme Court already admitted, being this legally regulated by the article 187.5 of the Spanish Penal Code and points out that the doble typification -corruption of minors and sexual abuse- is correct when not only is being favored the prostitution of the minor, but which at the same time it is achieving to have carnal relations abusing of a situation of superiority like is precisely the case here.
And later it adds: “In this case the alleged concurrence of norms between the continuous crime of sexual abuse and the corruption of minors, has been dismissed by the jurisprudence pointing out that in these cases there is an extra which is not altogether covered by the crime of sexual abuse. In this sense, the Spanish Supreme Court´s sentence 422/2005 of 4 April, remembered that the concurrence of crimes would be possible attending the type of the sexual action tried always that is damaged the evolution or development of the personality of the passive subject, like happened in our case (touching of genitals, mutual masturbations, fellatios, introduction of the fingers into the vagina). Without forgetting the clause of the article 187.5 (current 188.5) introduced by the reform Organic Law 5/2010 of 22 June, which qualified that “the punishments pointed out will be imposed in their respective cases without prejudice of those which correspond for infringements against the freedom and sexual indemnity committed against the minors or handicapped persons”, what heads towards the real concurrence of crimes.”
Or in the Spanish Supreme Court´s sentence 4844/2022, where is stablished a real concurrence of crimes, when a fact constitutes two or more crimes (art. 73 CP), between the crime of corruption and the crime of sexual aggression: “The possible questions posed are expressly solved by the concurring clause established by the legislator in the point 5 of the same article 188, which establishes that the punishments pointed out will be imposed in their respective cases without prejudice of those which correspond for the infringements against the freedom and sexual indemnity committed upon the minors and handicapped persons needed of special protection. In this way, it imposes the appreciation of a concurrence of crimes, dismissing one of norms.
However, taking into account that the type regards at the same level the cases in which the author solicits, accepts or obtains the sexual relation with the minor, and distinguishing the cases of mere request or acceptation of those in which effectively takes place such relation, the jurisprudence, in the cases in which the author has already obtained it, has understood that it is an ideal concurrence of crimes (Spanish Supreme Court´s sentence number 181/2021 of 2 March). Thereby, this is how it should be applied in the case, what determines the partial estimation of the motive.”
Regarding the possibility of existing continuous crime, here is also of application what we saw in relation with the article 187. Given the objective type of the crime, various behaviors which integrate it and affect to the same passive subject, will constitute only one no continuous crime.
Article 189:
In the article 189 we find the denominated crime of child pornography. For its analysis, will be really important the Circular 2/2015 which we mentioned at the beginning.
Let us see firstly what is the exact content of the article 189, for studying it later:
“Article 189:
1. Will be punished with the punishment of imprisonment from one to five years:
a) Who entice or use minors of age or handicapped persons needed of special protection with aims or in exhibitionist or pornographic spectacles, either public or private, or for elaborating any kind of pornographic material, whatever may be its medium, or finances any of these activities or obtains a benefit from them.
b) Who produces, sells, distributes, exhibits, offers or facilitates the production, sale, diffusion or exhibition by any means of child pornography or in whose elaboration has been utilized handicapped persons needed of special protection, or has it with this purpose, although the material had its origin at a foreign country or was unknown.
To the effects of this Title is considered child pornography or in whose elaboration has been used handicapped persons needed of special protection:
a) All material which represents in a visual way a minor or a handicapped person needed of special protection taking part into an explicit sexual behavior, real or simulated.
b) All representation of the sexual organs of a minor or handicapped person needed of special protection with mainly sexual aims.
c) All material which represent in a visual way a person which lokes like a minor taking part into an explicit sexual behavior, real or simulated, or any representation of the sexual organs of a person who looks like a minor, with mainly sexual ends, except when the person who looks like a minor is in reality eighteen years old or more in the moment of being obtained the images.
d) Realistic images of a minor taking part into an explicit sexual behavior or realistic images of the sexual organs of a minor, with mainly sexual aims.
2. Will be punished with the punishment of imprisonment from five to nine years those who carry out the acts envisaged in the point 1 of this article when any of the following circumstances concur:
a) When are utilized minors under sixteen years of age.
b) When the facts are specially degrading or humiliating, it is employed physical or sexual violence for obtaining the pornographic material or are represented scenes of sexual or physical violence.
c) When are used minors of age who are in a special situation of vulnerability for reason of illness, disability or for any other circumstance.
d) When the guilty has put into risk, in a malicious way or by grave imprudence, the life or health of the victim.
e) When the pornographic material is of notorious importance.
f) When the guilty pertains to an organization or association, even of transitory character, which carries out such activities.
g) When the liable is an ascendant, tutor, guardian, teacher or any other person in charge, in fact, although provisionally, or in law, of the minor, of the person minor of age or handicapped person needed of special protection, or is any person who coexists with it or of another person who has actuated abusing of its recognized position of confidence or authority.
h) When the aggravating factor of recidivism concurs.
3. If the facts to which is referred the letter a) of the first paragraph of the point 1 are committed with violence or intimidation will be imposed the punishment superior in degree to the envisaged in the above points.
4. Who knowingly assists to exhibitionists or pornographic spectacles in which take part minors of age or handicapped persons needed of special protection, will be punished with the punishment from six months to two years of imprisonment.
5. Who for its own use acquires or posses child pornography or in whose elaboration has been used handicapped persons needed of special protection, will be punished with the punishment of imprisonment from three months to one year or fine from six months to two years.
The same punishment will be imposed to who knowingly accesses to child pornography or in whose elaboration has been used handicapped persons needed of special protection, by means of the technologies of information or communication.
6. Who has under its legal authority, tutelage, guardianship or sheltering a minor of age or a handicapped person needed of special protection and who, knowing its state of prostitution or corruption, does not make all the possible for impeding its continuation in such state, or does not go to the competent authority for the same aim if it lacks the means necessary for the custody of the minor or handicapped person needed of special protection, will be punished with punishment of imprisonment from three to six months or fine from six to twelve months.
7. The public prosecution will promote the necessary actions with the object of depriving of the parental authority, tutelage, guardianship or family sheltering, in its case, to the person who incurs in any of the behaviors described in the above point.
8. The judges and courts will agree the adoption of the necessary measures for taking down of the websites or applications of internet which contains or spreads child pornography or in whose elaboration has been utilized handicapped persons needed of special protection or, in its case, for blocking the access to them to the users of internet which are located in Spanish Territory.
These measures can be agreed with preventive character at the request of the public prosecution.”
Before commencing, we have to take into account that, the Directive 1999/93/EC of the European Parliament and of the Council of 13 December 2011 on the fight against the sexual abuses and the sexual exploitation of the minors and the child pornography, has been what has inspired the majority of the content of this precept dedicated to the child pornography, after the reform of the CP through the Organic Law 1/2015 of 30 March.
Another important aspect that we should consider, is what is also said by the Circular 1/2015 in its introduction, “The new wording of the article 189 repeatedly put the child pornography on the level with the pornography “in whose elaboration has been utilized handicapped persons needed of special protection.” Even assuming such comparison, with general character and for reasons of expositive simplicity, we are referring to the child pornography, besides taking into account that, how has been manifested by the criminologists who has studied this criminal phenomenon, there exists no traffic of pornography of handicapped adults.”
Now, let us stop at the first point of the article 189. In it, are described two kinds of behaviors which may integrate the crime of child pornography, and as such, will constitute the objective element of the type. In the point a), we have what the Circular 1/2015 has denominated “Utilization of minors with pornographic aims.” Such point a) says, “a) Who entice or use minors of age or handicapped persons needed of special protection with aims or in exhibitionist or pornographic spectacles, either public or private, or for elaborating any kind of pornographic material, whatever may be its medium, or finances any of these activities or obtains a benefit from them.” The behaviors described in this first point, unlike the described in the letter b) of the same point, affect to the sexual indemnity of concrete minors.
With regard to the use of minors in spectacles, the Circular 1/2015 says that “has to be understood that the minor has to intervene in it. Will not be subsumed in this type the rendering by the minor of secondary tasks like the sale of tickets, waiter, etc. The typification requires that the minor has a paper in the sexual spectacle. It is illustrative the definition given by the letter e) of the article 2 of the Directive 2011/93/UE according to which for pornographic spectacle has to be understood “the exhibition in direct aimed to a public, even by means of technologies of the information and the communication: i) of a minor taking part in an explicit sexual behavior real or simulated, or ii) of the sexual organs of a minor with mainly sexual aims.””
On the contrary, adds the Circular 1/2015, “When the development of the facts in the private ambit only supposes the exhibition for the own active subject of the crime, will not be fulfilled the demands of the concept “spectacle”.”
The Circular 1/2015 clarifies, how are resolved the scenarios where who participates in the elaboration of the child pornography, subsequently distributes the material elaborated: “The behavior has to be exclusively typified in accordance with the article 189.1.a), since the subsequently action of diffusion has to be comprehended within the stage of exhaustion. In this sense the Spanish Supreme Court´s sentence number 947/2009 of 2 October.”
Another kind of concurrence, is between the crime of utilization of minors and the crime of sexual aggression of minors under sixteen years of age. Between them there exists a real concurrence of crimes (art. 73 CP), which must be punished independently. Nevertheless, we have to be careful, in the article 183.2 CP we find, the known by the doctrine as the crime of sexting, which consists in trying to obtain from a minor under sixteen years of age, pornographic material where appear minors. Between this crime of sexting and the crime of sexual aggression to minors under sixteen years of age there exists a relation of concurrence of norms of the article 8.3 CP, being punished both behaviors as one crime of sexual aggression. ¿What is the difference between the crime of utilization of minors (for elaborating pornographic material) and the crime of sexting? According to the Spanish Supreme Court, if the obtention of the pornographic material of a minor has been the means for later sexually attacking it, we will be before a crime of sexting and of sexual aggression, which will be punished according to the rules of the aforementioned concurrence of norms. On the contrary, if there exists no relation between the sexual aggression and the elaboration of pornographic material, for example because both behaviors are clearly differentiated in the time, we will be before a crime of utilization of minors and a crime of sexual aggression, which should be punished separately according to the rules of a real concurrence of crimes (art. 73 CP). The Spanish Supreme Court´s sentence number 4844/2022 is a good example of the above: “3. The appellant also claims in relation with the pornographic pictures obtained from the minor that either the behavior is not punishable or it is absorbed by the crime of sexual abuse when the material is offered or requested as an anticipation of the illicit act which constitute this last crime.
It is true that it can be understood that this is like this in the cases in which, only as immediate introduction of the act of abuse or as part of the execution of it, are requested or obtained this kind of images.
This is different, however, when, as happens in the case, the author requires the images with the finality of disposing of them for the elaboration of the pornographic material, in a behavior separated and independent of the acts that, in subsequent moments, may execute advancing its behavior until the practice of the typical acts of the sexual abuse. In the case, this is how result, not only from the temporal separation of the behavior, for the obtention of the images took place from September 2018 to march 2020, but also from the stocking and subsequent possession of pornographic material obtained, from which results that finality of its behavior was not only to facilitate the commission of the acts of abuse, but to obtain images of the minor with which to elaborate the pornographic material. In this way is justified punishing as a case of real concurrence of crimes.”
The legal good protected will be, the sexual indemnity and liberty of the minor, understood in a broad sense, as its right to a balanced development, concretely its sexual development. Being a personal legal good, if in the pornographic material or in the spectacles have been used various minors or handicapped persons, there will be as much crimes as minors or handicapped persons have been utilized.
The subjective type will demand that the behavior described is carried out existing malice, at least in its eventual modality.
On the other hand, there will exist no continuous crime when in only one act are made various scenes, for all of them will constitute a crime.
In the point b) of the article 189.1, we find the crime which has been denominated by the Circular 1/2015, as a crime of “Diffusion of child pornography”. It is a crime of mere activity, which has as finality the protection of the legal good sexual freedom and indemnity of the minors. Although in this case, irrespective of whether it is a personal legal good or not, according to the Circular 1/2015, “The jurisprudence has consolidated the doctrine of the Inquiry 3/2006 which, in relation with the article 189.1.b) established that has to be appreciated only one crime even when the pornographic archives are multiple and/or affect to a plurality of minors (Spanish Supreme Court´s sentences number 782/2007 of 3 October; 785/2008 of 25 November and 829/2008 of 5 December).”
If the behaviors described in the point a) of the article 189.1 affects to concrete minors, the described in the point b) are not centered in them, but in the diffusion or traffic of pornographic images, thereby there will be only one crime even when the distributed archives are multiple or affect to various persons. But les us continue attending, to what concretely said to us the Circular 1/2015 with regard to it: “The essential difference of the types of the article 189.1.b) with respect to the letter a) is that “should be understood that it is referred to the behaviors of the active subject relative to the traffic or diffusion of pornographic images without having it previously participated in the elaboration or recording of them, irrespective of whether there is profit motive or not.” (Spanish Supreme Court 795/2009 of 28 May).
Like the Inquiry 3/2006 establishes “within the article 189.1.a), has to be placed all the behaviors in which are affected concrete minors, affecting to them, direct (enticing the minors, convincing them for elaborating the material, recording,…) or indirectly (financing the recording, supplying the premises, …). On the contrary, either the type of the article 189.1.b)… the active subject acts upon a material already elaborated, in whose process of elaboration has not participated, not having therefore with is action affected upon the behavior of the minor. Always that there exists a behavior which has repercussion upon a minor (not upon the images obtained) the action has to be that of the letter a).””
Therefore, what is the really important and distinguishes the crime of the letter a) of the crime of the letter b) of the article 189.1, is whether the active subject has participated in the elaboration of the pornographic material.
Summing up, we can say that the objective type will be fulfilled when the active subject participates in the diffusion of the pornographic material by any means. It supposes a broad scope of the precept, for the participation in any behavior which supposes the diffusion of child pornography will be punished. Here, we find an important difference with respect to the crime of sexual provocation of the article 186, leaving aside other important differences like the facts that the pornography should be spread among minors and need not to be regarded as child pornography, for this article demands that the diffusion of pornography has to be carried out by a direct means, what has been understood by the doctrine as the physical presence of the minor and the adult who spreads it, in such act of distribution.
This broad scope with which has been described the objective type, has important implications in relation with the computer programs of P2P, peer to peer, for at the beginning the jurisprudence understood that, the simple existence of such programs in the computer through which had been spread the child pornography, fulfilled the subjective elements of the type, something which later has been qualified, being demanded that the existence of such programs has to be accompanied of another objective data which determine that the intention of the active subject was the spreading of the child pornography, or at least, that it knew that it could happen. A good example, is the Provincial Court of Lugo´s sentence number 123/2023: “In this sense has to be pointed out (as has been established also by the Jurisprudence) in the term of facilitating or distributing the spreading (used by the regulating precept the behaviors here analyzed -article 189.1.a)- fits besides in the delivery of something to another person who receive it physically, as well as, the putting in common of the pornographic material in whose elaboration have been used minors or handicapped persons through P2P nets (this is how was qualified by the sentences of the Spanish Supreme Court of 28 May 2008 and 12 November 2008), in which is shared the referred material both during the downloading and, subsequently, through including it in the folder Incoming- the usually used for that behaviors- of the Emule program (folders which are of free access for the users of the program Emule), putting, in both cases, the information, pornographic material, within reach of an indetermined number of persons.”
For adding later the same sentence: “In these sense although it is true that the Jurisprudence has developed from understanding that the mere use of a program of that kind already supposes, to the level of user, the knowledge that is been facilitated the diffusion to third parties of all that material downloaded which is stored in the referred folders, to establishing that the subjective element cannot be presumed upon the base of such only data, being necessary, in each case, to asses expressly the proofs which prove such knowledge. Likewise the jurisprudence – like the sentence 680/2010- has qualified that, in what to the malice is referred, it is enough with being eventual, and not only direct or of first degree, in other words, that the agent has to act knowing the high probabilities that the use of the program allows the access to third persons of the pornographic material obtained in this way, warning, as well, that it is not correct to deduce the knowledge of the mere use of the program, but that is necessary, in each case, to stablish its existence from the proven circumstances, agreeing, in this sense and direction, the Plenary of the Second Chamber of 27 October 2009, that “stablished the existence of the objective type of the figure of facilitating of the diffusion of child pornography of the article 1898.1.b) of the Penal Code, regarding the subjective type, the verification of the concurrence of malice has to be made, avoiding automatisms derived of the mere possession of the program”. An agreement which later has been included in various sentences, -among them the number 340/2010- being understood, therefore, that the proving of malice demands something more than the proof of the mere use of the program, being necessary, thereby, to take into account another data like the archives stored in the hard drive or another devices for storing, the number of times which have been shared, the receiving by other users, and any other external circumstances which concur and are determining for reaching the conviction that the author is conscious of its activity of facilitating the child pornography.”
One of the novelties which incorporated the article 189 with respect to older regulations, is the incorporation of a definition of child pornography. We find it in its first point. Regarding it, the Circular 2/2015 says: “Indeed, although before the reform carried out by the Organic Law 1/2015, there existed no legal concept of child pornography, the Penal Code incorporated a normative demand which provided some hints for discerning this concept: in any case, the material should be referred to a real minor, who existed. After the reform such connection is altered.”
It is altered, because after the reform carried out by the Organic Law 1/2015, are regarded as child pornography, the virtual and technical, which we will see later. But before, we should qualify three things that the Circular 1/2015 clarifies too: 1) In any case, the written pornographic material (novels, tales,…) cannot be included within the typical scope; 2) The child pornography has to be integrated by visual representations, it is not enough the audio, and 3) It has to be excluded from the scope of child pornography the materials with a medical, scientific or similar aim.
Besides, we have to take also into account that the Spanish Supreme Court dismisses the mere nudity of such character, though, it does regard nudity can be punished, when the material used (pictures, videos…) “incorporates a minor in an explicit sexual behavior, understanding for this the carnal access in all its modalities, the masturbation, bestiality, or the sadomasochistic practices…” (Spanish Supreme Court´s sentence number 803/2010 of 30 September and 264/2012 of 3 April).
The same criteria followed by the Prosecutor General’s Office, in its Circular 2/2015: “The Public Prosecutors will maintain the pornographic character of the images of naked children when these are within a lustful context (posing with sexual content and images emphasizing the genitals). For separating the nudity which is penally relevant of the irrelevant should be analyzed whether the visual material is centered in a sexual behavior or in the sexual organs of the minor.”
In fact, as we have already seen, the article 189.1 says:
“To the effects of this Title is considered child pornography or in whose elaboration has been used handicapped persons needed of special protection:
a) All material which represents in a visual way a minor or a handicapped person needed of special protection taking part into an explicit sexual behavior, real or simulated.
b) All representation of the sexual organs of a minor or handicapped person needed of special protection with mainly sexual aims.
c) All material which represent in a visual way a person which lokes like a minor taking part into an explicit sexual behavior, real or simulated, or any representation of the sexual organs of a person who looks like a minor, with mainly sexual ends, except when the person who looks like a minor is in reality eighteen years old or more in the moment of being obtained the images.
d) Realistic images of a minor taking part into an explicit sexual behavior or realistic images of the sexual organs of a minor, with mainly sexual aims.”
Let us now talk about the virtual pornography and the technical. According to the Circular 2/2015, “The so-called virtual pornography is that in which the image of the minor is an artificial but realistic creation, elaborated by computer or another means.”
Its typification in the CP, has been made through the point d) of the article 189.1, which considers child pornography “d) realistic images of a minor participating in an explicit sexual behavior or realistic images of the sexual organs of a minor, with mainly sexual aims.”
Notwithstanding, the Circular 2/2015 also advocates a restrictive application of the concept of realistic pornography, excluding of such concept: cartoons, manga or similar representations. Since they are not realistic images trying to represent the reality. In order to distinguish images realistic from those which are not, the Circular 2/2015, attends to the definition given by the Spanish Royal Language Academy’s dictionary of “realistic”, which means “it tries to adjust to the reality.”
On the other hand, the technical pornography is according to the Circular 2/2015 “The material integrated by images in which appear persons presented as minors in a sexual context.” In the actual CP, it is typified in the point c) of the article 189.1. The Circular 2/2015 establishes three criteria, according to which the Public Prosecutors can introduce it in their respective writings of accusation: 1) If the investigation may determine the minority of age of the person represented at the date in which was produced the material, the typification should be referred to common child pornography; 2) The verification that the protagonist of the scene was eighteen years old or more at the moment of being produced the material, will exclude the possibility of punishing the behavior, and; 3) If the majority or minority of age cannot be determined and the material presents it as a minor of age, the material should be regarded child pornography.
With this, we have finished with the first point of the article 189. Let us now see the second. In this second point are established eight aggravated subtypes, being incremented the punishment envisaged in the basic type of the first point of the article 189, when any of the circumstances mentioned concurs, and which are:
a) When are utilized minors under sixteen years of age.
b) When the facts are specially degrading or humiliating, it is employed physical or sexual violence for obtaining the pornographic material or are represented scenes of sexual or physical violence.
c) When are used minors of age who are in a special situation of vulnerability for reason of illness, disability or for any other circumstance.
d) When the guilty has put into risk, in a malicious way or by grave imprudence, the life or health of the victim.
e) When the pornographic material is of notorious importance.
f) When the guilty pertains to an organization or association, even of transitory character, which carries out such activities.
g) When the liable is an ascendant, tutor, guardian, teacher or any other person in charge, in fact, although provisionally, or in law, of the minor, of the person minor of age or handicapped person needed of special protection, or is any person who coexists with it or of another person who has actuated abusing of its recognized position of confidence or authority.
h) When the aggravating factor of recidivism concurs.
The increase of the punishment, which supposes the application of any of the aforementioned aggravated subtypes, determines the imprisonment of the guilty, since it will not be able of obtaining the suspension of the punishment of the article 80 CP, for surpassing the two years of prison.
Let us now see each of these aggravated subtypes, with the help of the Circular 2/2015, that tries to distinguish which ones are applicable to the two basic types of the article 189.1, and which ones only to the envisaged in its point a), a thing which has not been done by the legislator. Besides, it also clarifies another important point, “Though it is not envisaged a specific treatment for the cases in which more than one subtype concurs, such circumstance has to be taken into account for determining the concrete punishment which should be imposed within this broad range from five to nine years. In this sense the Spanish Supreme Court´s sentence number 588/2010 of 22 June, pronounces itself.”
The first of these aggravated subtypes is, “a) When are utilized minors under sixteen years of age.” Let us try to sum up, its more important aspects:
– It is necessary the utilization of real minors of age. It cannot be integrated by virtual or technical pornography.
– The subtype strengthens the protection of minors under sixteen years of age, because they do not have the capacity to grant sexual consent.
– The malice of the active subject has to comprehend the minority of sixteen years of the minor, at least in its eventual modality.
– Only can be applied this aggravated subtype, to who makes use of minors under sixteen years of age for pornographic purposes, basic type of the article 189.1.a).
The second aggravated subtype is, “b) When the facts are specially degrading or humiliating, it is employed physical or sexual violence for obtaining the pornographic material or are represented scenes of sexual or physical violence”. These are its more important aspects:
– It is not applicable to the virtual or technical pornography.
– That the facts are “degrading” or “humiliating”, are two undetermined concepts. However, there exist clear scenarios of application like sadomasochism, bestiality, coprophilia, sexual practices with babies and other analogous facts specially degrading for the children.
– In various resolutions is demanded for applying the aggravated subtype for degrading or humiliating facts “a specialty surpassing the normal aversion which provokes a pornographic archive with minors” (Spanish Supreme Court´s sentences number 1299/2011 of 17 November, 130/2010 of 17 February and Spanish Supreme Court´s resolution number 1299/2011 of 29 September).
– If they are degrading or humiliating facts, their application is clear in the utilization of minors (art. 189.1.a), but it is not as clear in the cases of diffusion. Concerning this there exists diverse jurisprudence, the Circular 2/2015 advocates its use in the cases of diffusion, when there exist clear objective elements which determine that the will of the active subject was to spread child pornography particularly humiliating or degrading.
– The application of the aggravated subtype for employing physical or sexual violence for the obtention of material, seems to be restricted to the cases of utilization of minors (art. 189.1.a).
– For the Spanish Supreme Court´s sentence number 588/2010 of 22 June the physical violence “has been regarded as that which supposes the employment of violent means aimed to subjugate the victim. The matter is not as much to verify whether there existed some kind of physical violence for minimum that it was, as whether this force was aimed to subjugate the victim…”
– It is understood for sexual violence actions or situations of forcing which are equivalent to a rape or sexual aggression or cases of children which appear tied of feet and hands, cases of special subjugation and immobilization which exceed the “special” sexual relation with a minor -even of minors under sixteen years of age (Spanish Supreme Court´s sentence number 1377/2011 of 10 December).
– The application of the aggravated subtype for the cases in which are represented scenes of physical or sexual violence, seems to be aimed as much to the cases of utilization of minors as to the cases of diffusion. Though in the case of the diffusion, should be demanded an specific malice, that the author knows or think probable, that it is spreading child pornography with this content.
The third aggravated subtype is, “c) When are used minors of age who are in a special situation of vulnerability for reason of illness, disability or for any other circumstance.” These are its characteristic elements:
– It is not applicable to the virtual or technical material, since in them there are no victims.
– The subtype making use of the word “utilize”, seems to be limiting the application of this aggravated subtype to the cases of utilization of minors (art. 189.1.a).
– The situation of vulnerability may be any, though are expressly mentioned two.
The fourth aggravated subtype is, “d) When the guilty has put into risk, in a malicious way or by grave imprudence, the life or health of the victim.” These are its the characteristic elements:
– It is a subtype of mere activity which will be punished with independence of the malicious or imprudent result provoked.
– This new subtype can only be applied to the basic type of utilization of minors (art. 189.1.a) and not to the diffusion of pornography (art. 189.1.b).
– It cannot be applied either to the cases of virtual pornography, since them require a real victim.
The fifth aggravated subtype is, “e) When the pornographic material is of notorious importance.” Its characteristic elements are:
– The notorious importance, is referred to the quantity of pornographic material.
– Only for the cases in which has been massively spread material.
– It is applicable to the virtual and technical material.
The sixth aggravated subtype is, “f) When the guilty pertains to an organization or association, even of transitory character, which carries out such activities.” Its characteristic elements are:
– It is also applicable to the organizations and associations dedicated to the production of virtual or technical pornography.
– It is not admissible an interpretation which applies the subtype to the mere exchange peer to peer of archives, since it would be extensive and contrary to the principle of proportionality.
– This scenario is applicable as much to the type of utilization as to the type of diffusion, since the precept does not make a distinction.
– That the guilty pertains to a criminal group or organization, is an aggravated subtype which will enter into a concurrence of norms with the types of Chapter VI of the Title XXII of the Book II, of the criminal group or organizations or, in its case, with the crime of illicit association of the article 515.1º. In any case, like the Circular 2/2015 points out, this has to be solved by application of the rule envisaged in the art. 8.4º, since the second paragraph of the second point of the art. 570 quarter CP opts for this option. Therefore, in these cases for determining which is the gravest punishment, we have to compere the punishments envisaged in the point a) and point b) of the art. 189.1 CP, (imprisonment from one to five years), with those which result from applying the types of the article 570 bis, or in its case of the article 570 ter CP, and the crime of utilization of minors or diffusion of pornography (art. 189.1.a) and art. 189.1.b) (basic type or aggravated type if concurs any other aggravating circumstance different to the pertaining to criminal organization or group, otherwise the principle non bis in idem would be infringed). In order to calculate the punishment in the last case, we will have to take into account that the concurrence of crimes between the crime of utilization of minors or diffusion of pornography and the crime of criminal organization or group, may be real or ideal, depending on the concurring circumstances of the case.
– This subtype allows its application to transitory structures. These cannot be typified as organizations or associations, but they can be regarded as a criminal group, since they would be a group of persons not enough organized for lasting. Here, it will be applicable again the principle of alternativity (art. 8.4 CP). Being typified the facts as, a crime of child pornography in its aggravated modality, or of child pornography in its basic modality in a real concurrence of crimes with a crime of integration in criminal group.
The seventh aggravated subtype is, “g) When the liable is an ascendant, tutor, guardian, teacher or any other person in charge, in fact, although provisionally, or in law, of the minor, of the person minor of age or handicapped person needed of special protection, or is any person who coexists with it or of another person who has actuated abusing of its recognized position of confidence or authority.” These are its characteristic elements:
– It cannot be applied to the virtual or technical pornography.
– The subtype is applicable as much to the utilization of minors as to the diffusion of pornography (art. 189.1.a) and article 189.1.b).
The eight aggravated subtype is, “h) When the aggravating factor of recidivism concurs.” These are its characteristic elements:
– It cannot be appreciated at the same time the aggravating factor of recidivism (art.22.8º CP) and the aggravated subtype of recidivism, otherwise the principle non bis in ídem would be infringed.
– For the article 190 CP are equivalent the convictions of foreign Judges or Courts to the sentences of Spanish Judges or Courts, when is applied the aggravated subtype of recidivism.
Let us now talk about the third point of the article 189. This third point imposes the punishment superior in degree to the envisaged in the first and second point of the article 189, when the facts are concerning the utilization of minors (art. 189.1.a CP) and have been committed through violence or intimidation.
This super-aggravated subtype has two problems: 1) It is not possible to apply the super-aggravated subtype for violence or intimidation and at the same time to punish the same behavior with the aggravated subtype b) of the second point of the art. 189 (for employing physical or sexual violence for obtaining pornographic material), otherwise the same behavior would be punished two time and the principle non bis in ídem would be infringed, and; 2) The same happens, if it is utilized the same behavior for typifying the fact as utilization of minors (art. 189.1.a) with the super-aggravated subtype of the article 189.3, and at the same time of sexual aggression (art. 178 or art. 181 CP).
The solution to the first case is easy, the application of the aggravated subtype of the art. 189.2.b should be dismissed, in favor of the application of the super-aggravated subtype of the art. 189.3, being possible to apply this along an aggravated subtype of the art.189.2, in the cases in which the aggravated subtype chosen is not for “for employing physical or sexual violence for obtaining pornographic material”.
The solution to the second problem is a little more complex. According to the Circular 2/2015, we have to apply again the principle of alternativity of the article 8.4 CP. Therefore, the facts may be typified as a crime of utilization of minors (art. 189.1.a CP) with the super-aggravated factor of violence or intimidation (art. 189.3 CP), or as a crime of utilization of minors (art. 189.1.a), without the application of the of the super-aggravated subtype of the article 189.3, in a real concurrence of crimes with a crime of sexual aggression (art. 178 CP), or of sexual aggression to minors under sixteen years of age (art. 181 CP).
Regarding the above the Circular 2/2015 says: “After the reform carried out by the Organic Law 1/2015 the Public Prosecutors should understand that is not possible to appreciate the super-aggravated subtype in relation with the type of utilization of minors for elaborating pornographic material and besides to appreciate at the same time the corresponding type of sexual aggression, when the violence or intimidation has been used for making the minor to execute the sexual act recorded, filmed or photographed. Otherwise, there would an infringement of the principle non bis in idem.
Therefore, the Public Prosecutors, till there is not a consolidated an opposing stand of jurisprudence, will opt in these cases for applying the norms for resolving the concurrence of norms contemplated in the article 8 CP, applying either the type of the article 189.1.a) with the aggravation contemplated in the article 183.3, or applying the type of the article 189.1.a) in a real concurrence of crimes with the type corresponding to the sexual aggression in which can be subsumed the facts which generated the elaboration of the material. The concretes and concurring circumstances of each case will be what orient at the hour of selecting the principle applicable for resolving the concurrence of norms. In principle, there is no relation of specialty, subsidiarity or absorption, thereby, except when such circumstances advise another option, the principle of alternativity has to be chosen.”
The moment has arrived of talking about the fourth point of the article 189. In it is punished who, knowingly assist to exhibitionist or pornographic spectacles in which participate minor of age or handicapped persons needed of special protection.
According to the Circular 2/2015, the greater or lesser penal reproach of the facts will depend upon whether the minors who participate in the spectacle have reached the sixteen years of age, since this is the criteria followed by the Directive 2011/93/UE, which imposes “the freedom´s privative punishments of a maximum duration of at least two years if the minor has not reached the age of sexual consent, and of at least one year if the minor has reached this age.”
Now talking about the fifth point of the article 189, this punishes two behaviors: 1) Who for its own use acquires or possesses child pornography or in whose elaboration have been used persons with a disability needed of special protection, and; 2) Who knowingly accesses to child pornography or in whose elaboration have been used handicapped persons needed of a special protection, by means of technologies of information and communication.
This are the elements characteristic of the first:
– It is a crime to possess or acquire virtual or technical pornography.
– The penal type of possession requires, like the Spanish Supreme Court´s sentence number 105/2009 of 20 January establishes, the concurrence of the following elements: a) a possession of the pornographic material, in whose elaboration have been used minors or handicapped persons, what is integrated through the concept of pornography…along the data of the appearing of minors of handicapped persons, within a sexual scenario; b) that this material has a personal use for who uses it, being excluded any activity which supposes production or diffusion, in other words, some of the modalities of producing, selling, distributing, exhibiting or facilitating this activities by any means, or the mere possession for these aims…c) a subjective element, constituted by the malice of the agent, which here will be enough with the conscience that it possesses in its system or terminal, such archives which constitute child pornography (which should be proven too in each case).
These are the characteristic elements of the second:
– The necessity of that the access has to be “knowingly” imposes the necessity of a direct malice.
– This direct malice may be deduced from the frequency with which the subject consults such material or if it has access to it through a payment service.
In the sixth point of the article 189, is punished who having “under its legal authority, tutelage, guardianship or sheltering a minor of age or a handicapped person needed of special protection and who, knowing its state of prostitution or corruption, does not make all the possible for impeding its continuation in such state, or does not go to the competent authority for the same aim if it lacks the means necessary for the custody of the minor or handicapped person needed of special protection.”
The objective type has as basis, this relation of guardianship of the active subject in relation with the passive subject, this is why is punished not to make all the possible for impeding its continuation in such state or not to go to the competent authority for the same aim.
With regard to the subjective type, there has to exist malice, at least, in its eventual modality, when the active subject suspects that thanks to its connivance the minor continues in a state of prostitution.
Besides, in the seventh point of the article 189 is imposed the obligation to the Public Prosecutors of promoting “parental authority, tutelage, guardianship or family sheltering, in its case, to the person who incurs in any of the behaviors described in the above point.”
With the eighth point, we end the article 189. In it are regulated the adoption of measures, by the judges or courts, for taking down the websites or applications of internet which contain or spread child pornography. They can also agree, the blocking of the access to them to their users of internet who are in Spanish territory. These measures can be agreed with preventive character at the request of the Public Prosecution.
The envisaged in this point, should be combined with the said by the article 13 of the Spanish Criminal Procedure Act (LECrim), where are regulated the first measures of investigation which may be agreed once the Examining Magistrate has knowledge of the existence of a possible crime, and the said by the article 8 of the Law 34/2002 of 11 July, of services of the society of information and of electronic commerce (LSSI), where are established the conditions for such withdrawal or blocking.
Once we have finished with the article 189, we have to comment two articles more, the article 189 bis and the article 189 ter.
The article 189 bis says:
“Article 189 bis.
The public spreading or distribution through internet, the telephone or any other technology of the information or of communication of specific contents aimed to promote, boost or incite the commission of the crimes envisaged in this chapter and in the chapters II bis and IV of the present title will be punished with the punishment of fine from six to twelve months or the punishment of imprisonment from one to three years.
The public authorities will agree the necessary measures for retiring the content to which is referred the above paragraph, for the interruption of the services which predominantly offer such contents or for the blocking of ones and others when they reside offshore.”
In it, what is punished is promoting the commission of the crimes envisaged in this Title, those of sexual aggression to minors under sixteen years old or those of exhibitionism or sexual provocation, through any technology of the information or communication. On the other hand, the subjective type will demand the concurrence of direct malice, or at least eventual, being enough with which the active subject knows that with its behavior probably, it will be inciting to the commission of any of the mentioned crimes.
In this case, like happens in the eight point of the article 189, is regulated the adoption by the Judges or Court of the necessary measures for the withdrawal of such contents or its blocking. It is understood that, these measures may be also agreed by the Examining Magistrates with preventive character and be requested by the Public Prosecution during the same stage of investigation. What is said in this point of the article 189 bis, has to be also put in relation with the article 13 LECrim and 8 LSSI.
Lastly, we should comment the article 189 ter, which says:
“Article 189 ter.
When in accordance with the established in the article 31 bis a legal entity is liable of the crimes comprehended in this Chapter, will be imposed to it the following punishments:
a) Fine from the triple to the quintuple of the benefit obtained, if the crime committed by the physical person has envisaged a punishment of imprisonment of more than five years.
b) Fine from the doble to the quadruple of the benefit obtained, if the crime committed by the physical person has envisaged a punishment of imprisonment of more than two years not included in the above point.
c) Fine from the doble to the triple of the benefit obtained, in the rest of the cases.
d) Dissolution of the legal entity, according to the envisaged in the article 33.7.b) of this Code, being possible to agree, attending to the rules gathered in the article 66 bis, the rest of the punishments envisaged in it which are compatible with the dissolution.”
Like we have been able to observe through the comment of the above articles, the crimes comprehended in this Title, can be also committed by legal entities. A good example would be, the cases of suppliers of this kind of content through internet. Here we have to take into account, the said by the article 31 CP: “Who acts as administrator in fact or by right of a legal entity, or on behalf of or legal representation of another, will personally respond, although the conditions, qualities or relations which the corresponding figure of the crime requires for being active subject of the crime do not concur in it, if such circumstances appear in the entity or person on behalf of whom it acts, or it represents.”
Therefore, the administrators in fact or by right of a legal entity, will also personally respond of the crimes committed by it. This in the practice supposes that, the fines indicated in the article 189 ter, can be also imposed upon the administrators in fact or by right, being possible to distribute its amount between the legal entity and the physical person by the ruling judge or court.
2) The measures of investigation of “Search of Devices of Massive Storage of Information” and “Remote search over hardware”:
These two kinds of measures of investigation, are essential for proving the existence of a crime of child pornography of those which we have studied in the article 189 for either the scenario of utilization of minors (art. 189.1.a) or the scenario of diffusion (art. 189.1.b).
They two measures of investigation included within the Title VIII of the Book II of the Spanish Criminal Procedure Act (LECrim), and hence, which will affect some of the rights recognized in the article 18 of the Spanish Constitution (CE), that are: the right to intimacy (art. 18.1 CE); the right to the inviolability of the domicile (art. 18.2 CE); the right to the secret of the communications (art. 18.3 CE), and; the right to the data protection (art. 18.4 CE).
Being right with the rank of fundamental rights, due to their location within the Section I of the Chapter II of the Title I of the CE, they are protected by special guarantees for avoiding external interferences, concretely from the State, which may infringe them.
The guarantees that the LECrim envisages are the contemplated in the Chapter IV of the Title VIII of the Book II of the LECrim, a chapter which gathers common dispositions to all the measures of investigation of technological character which affect to some right of the article 18 CE.
For more information about them, I recommend to you the lecture of my following articles:
– Search of Devices of Massive Storage of Information (Art. 588 sexies a – Art. 588 sexies c LECrim).
– Remote search over hardware (Art. 588 septies a – Art. 588 septies c).
Víctor López Camacho
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com