Crimes against persons
In short
A complaint for a sexual offence changes the life of the person under investigation from day one, long before any judgment. That is why the defence must start early and with technical rigour. This page is intended for anyone who has been reported, summoned as a suspect (investigado) or arrested.
Organic Law 10/2022 (Ley Orgánica 10/2022) abolished the old distinction between sexual abuse and sexual assault: today, any sexual act without consent is sexual assault (agresión sexual, article 178 of the Criminal Code). The law defines consent: it only exists when it has been freely expressed through acts which, in the circumstances, clearly express the person’s will.
Organic Law 4/2023 (Ley Orgánica 4/2023) differentiated the penalties once again: acts committed with violence or intimidation, or against a victim whose will has been overridden, now carry a higher penalty (arts. 178.3 and 179.2).
| Offence | Article | Penalty provided |
|---|---|---|
| Sexual assault | 178.1 | Prison from 1 to 4 years |
| Sexual assault with violence or intimidation, or against a victim whose will has been overridden | 178.3 | Prison from 1 to 5 years |
| Rape | 179.1 | Prison from 4 to 12 years |
| Rape with violence or intimidation, or against a victim whose will has been overridden | 179.2 | Prison from 6 to 12 years |
| Sexual assault on a child under 16 | 181.1 | Prison from 2 to 6 years |
| Online contact with a child under 16 to arrange a meeting for sexual purposes | 183.1 | Prison from 1 to 3 years or a fine of 12 to 24 months |
| Sexual harassment | 184.1 | Prison from 6 to 12 months or a fine of 10 to 15 months, and special disqualification |
The penalties increase if aggravating factors under article 180 are present, such as two or more people acting together, the use of weapons, the victim’s particular vulnerability or having given the victim substances to override their will. Conversely, for an assault under article 178.1 without violence, intimidation or aggravating factors, the court may impose the penalty in its lower half or a fine of eighteen to twenty-four months, taking into account the lesser seriousness of the act (art. 178.4).
A prison sentence for these offences also carries consequences that should be understood from the outset: supervised release after serving the sentence (art. 192.1), disqualification from professions or activities involving regular contact with minors (art. 192.3) and, often, bans on approaching and contacting the victim (art. 57).
If the events took place before the reform, the law most favourable to the accused applies (art. 2.2). Analysing which version of the Criminal Code applies to your case can change the sentence.
To prosecute a sexual assault or sexual harassment, a complaint by the injured person or their legal representative, or a criminal complaint by the Public Prosecutor’s Office, is required; if the victim is a minor or a person with a disability in need of special protection, a complaint by the public prosecutor is sufficient. Unlike other offences, the victim’s forgiveness does not extinguish criminal proceedings (art. 191).
The investigation is conducted by the Investigation Section of the Court of First Instance (Sección de Instrucción del Tribunal de Instancia, formerly the investigating court), which may order measures such as a ban on approaching or contacting the complainant, even with electronic tag monitoring (art. 544 bis of the Criminal Procedure Act, Ley de Enjuiciamiento Criminal). If the penalty provided does not exceed five years in prison, the case is tried by the Criminal Section (Sección de lo Penal); if it is higher, by the Provincial Court (Audiencia Provincial).
If you have been summoned, read our guide on being summoned as a suspect. If you have been arrested, ask for your own lawyer to be called: 24-hour assistance for people under arrest.
Everyone accused has the right to the presumption of innocence and to a full defence, including for these offences. In many cases the main evidence is the complainant’s statement, and the defence must analyse it respectfully and rigorously.
If the accusation is fabricated, as well as defending you we can consider the appropriate legal action: we explain this under defence against false accusations.
If you are a woman who is a victim of sexual violence, Celeste can assist you through her specialist website: lawyer for sexual violence offences.
Basic sexual assault is punishable by one to four years in prison; if there is violence, intimidation or the victim’s will has been overridden, by one to five years (art. 178 of the Spanish Criminal Code). Rape, involving penetration, is punishable by four to twelve years, or six to twelve with violence or intimidation (art. 179). The aggravating factors in article 180 increase these penalties.
The victim’s statement can be sufficient evidence for a conviction, but the courts require its credibility, internal consistency and persistence to be analysed, as well as whether there is objective evidence to corroborate it. The defence can provide evidence that contradicts it, such as messages, locations or witnesses. That is why it is essential to act from the outset.
No. For sexual assault and sexual harassment, the forgiveness of the injured person does not extinguish criminal proceedings (art. 191 of the Criminal Code). Once proceedings have begun, the Public Prosecutor’s Office can continue the prosecution. What the complainant says in a retraction may, however, be relevant in assessing the evidence.
It is a measure served after prison that involves checks and obligations for a period of time. For sexual offences, if there is a prison sentence, the law imposes it: five to ten years if any offence is serious and one to five years if it is less serious. If it is a single less serious offence and the person has no criminal record, the court may decide not to impose it.
More favourable criminal laws apply retroactively, even to final convictions (art. 2.2 of the Criminal Code). In each case, the wording in force when the events took place must be compared with later versions, taking the whole sentence into account. We study your judgment and tell you frankly whether a review is possible.
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