Sexual Abuse. What is the crime of sexual abuse?

Abuse is one of the sexual offences included in the Spanish Penal Code. Its definition means that, in many cases, it is confused with assault, which creates a lot of controversy among the public. For this reason, here we want to talk in depth about it and resolve any doubts you may have about it.

What is the crime of sexual abuse?

The crime of sexual abuse in the Penal Code is regulated in articles 181 and 182 of the Penal Code. It is located within Title VIII, which refers to crimes against freedom and sexual indemnity, and, in turn, in Chapter II.

Article 181.1 states that sexual abuse is an attack on sexual freedom or sexual indemnity without consent, violence or intimidation. From this definition, it is clear that the legal goods protected by the text are:

• Sexual freedom. The free will of any individual to consent to physical sexual contact. It is also defined as the power of each person to choose a partner for sexual relations. Therefore, this also includes the act of opposing and actively defending oneself against sexual acts with unwanted partners.
• Indemnity. The right to develop sexually in a healthy way and without outside interference. This other legal right is only in the possession of minors and/or incapable persons. This is mainly because they have not reached the point of maturity necessary to freely determine with whom they want to have sexual relations.

Non-consensual sexual abuse

This is a more precise definition than the one given above for the purpose of determining a specific type of offence. Specifically, this type of abuse is typified in Article 181.2 of the Penal Code. It refers to the action of having sexual contact without consent, violence or intimidation with persons deprived of meaning. Such deprivation may be due to:

• A mental disorder suffered by the victim.
• The use of drugs or medicines.
• The overriding of the will by means of specific substances.

What are the penalties for this offence?

It all depends on the type of abuse offence we are talking about. In this sense, if we refer to the general one specified in article 181.1 of the Penal Code, we find that it is punishable with between 1 and 3 years in prison or a fine of 18 to 24 months. On the other hand, the one specified in Article 181.2 (non-consensual), is punished with higher penalties unless there is prevalence, i.e. taking advantage of a situation of superiority over the victim to commit the criminal act.

However, for these penalties to apply, there must not have been penetration by vaginal, oral or anal intercourse. Neither with the penis nor with any other bodily member or object. In the event that this has happened, the offence will be punishable by prison sentences of between 4 and 10 years. This is provided for in Article 181.4 of the Penal Code.

Child abuse

In the Penal Code, the legislator makes special mention of minors who are victims of abuse. In this regard, the prison sentences are between 1 and 3 years if the minor is between 16 and 18 years of age and there has been deception or abuse through trust, influence or authority. However, as long as there is no vaginal, oral or anal penetration. If this is the case, the penalties will range from 2 to 6 years' imprisonment.

Articles 183, 183 bis, 183 ter and 183 quarter of the Penal Code focus on the crime of abuse of minors under the age of 16. In this sense, three cases are established:

• The sexual act has been carried out without prevalence or deception. The penalty shall be 2 to 6 years' imprisonment.
• The sexual act has been carried out with the use of violence or intimidation. The penalty is 5 to 10 years' imprisonment.
• The sexual act involves penetration by vaginal, oral or anal intercourse. Imprisonment of 8 to 12 years.

Abuse: the difference with other sexual crimes

In recent years, many women's rights groups have raised slogans such as "It's not abuse, it's rape" or "Abuse and rape are the same thing". This stems from the controversial interpretations made by some judges in particularly controversial trials such as, for example, that of la manada after what happened in the Sanfermines in 2016.

The truth is that many people do not fully understand the differences between sexual abuse and sexual assault. At least, within what is specified in the Penal Code. For this reason, here we are going to explain it in a way that we are sure you can easily understand.

Sine qua non characteristics of the crime of abuse

There are a series of essential requirements for us to speak of a crime of abuse and not, for example, of sexual aggression or mistreatment. Specifically, they are:

• There is no violence. In other words, the perpetrator does not physically assault the victim in order to commit the abuse.
• There is no intimidation. Provoking such a state of fear in the victim that he/she is forced to submit to the abuser's will.

Obviously, there is also no consent, although this is an aspect that abuse shares with the crime of rape or sexual assault, for example. However, this criminal activity is also considered to have been obtained in a flawed manner. This is dictated by the principle of indemnity with regard to sex with minors under 16 years of age or disabled persons.

Difference between abuse and assault in the Penal Code

Sexual assault is above abuse in terms of seriousness. In fact, the penalty for rape is 6 to 12 years imprisonment.

The difference between sexual abuse and sexual assault lies primarily in the presence or absence of violence and/or intimidation. If the court determines that violence and/or intimidation were present, it must obviously classify the offence as sexual assault. On the other hand, if it cannot be proven that they were present in the commission of the act, it will have to classify it as abuse.

Violence in non-consensual sex is easy to establish as it usually leaves traces in the form of marks or wounds. However, the same is not true for intimidation: is the presence of several men sufficient, for example, to intimidate the victim? This is at the root of the current controversy and has led to consideration being given to changing the Penal Code to unify the two offences into one.

Conclusions on the crime of sexual abuse

In short, sexual abuse is a crime covered by the Penal Code that is generally linked to the interpretation of the existence of intimidation or prevalence. In any case, we hope that you have been able to understand what it consists of and how it differs from sexual assault and rape.

• There is no violence. In other words, the perpetrator does not physically assault the victim in order to commit the abuse.
  • There is no intimidation. Provoking such a state of fear in the victim that he/she is forced to submit to the abuser's will.