SESSION 8. Sexual crimes. Rape and sexual assault

OFFENSES AGAINST THE PERSON: SEXUAL CRIMES

• Introductory session for Criminal Law II.

VIOLENCE AGAINST WOMEN: BACKGROUND

• International Covenant on Civil and Political Rights

  • States that all individuals are equal before the law and deserve equal protection without discrimination.

  • Discrimination based on race, color, sex, language, religion, and other status is prohibited.

• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

  • Article 2 mandates legal protection of women's rights on equal terms with men.

• Convention on the Rights of the Child

  • Article 19 outlines that children should be protected from all forms of abuse, including sexual abuse.

• Declaration on the Elimination of Violence Against Women

  • Article 4 compels states to prevent and investigate violence against women and impose penalties accordingly.

SEXUAL VIOLENCE

• Defined as any attack against sexual freedom, violating human rights and attacking physical and psychological integrity (WHO, 1996).

SEXUAL CRIMES

• Refers to offenses against sexual freedom, whereby individuals have the autonomy to make decisions about their sexuality.

• Previously categorized as "Offenses against Morality" but updated to "Offenses against Sexual Autonomy and Indemnity."

MAIN ELEMENTS

• Protected Legal Good: Sexual freedom is the right to consent to or abstain from sexual activities.

  • Broader scope includes right against being involved in sexual contexts involuntarily.

• Legal Recognition: Not all individuals are recognized as capable of exercising sexual freedom; minors and those unable to make informed choices are protected from sexual acts, even consensual.

MAIN ELEMENTS (Cont'd)

• Active Subject: The perpetrator

• Passive Subject: The victim

• Material Object: The victim's body

• Type of Crime: Generally considered a crime of mere activity, with attempted sexual assaults also punishable.

MAIN ELEMENTS (Cont'd)

• Conduct: Any action that infringes upon sexual freedom. Differentiation between sexual assault, aggression, and rape based on severity and intent.

  • Sexual Assault: Involves unwanted physical contact with sexually sensitive areas.

MAIN ELEMENTS (Cont'd)

• Typicity:

  • Objective: Refers to actions violating sexual autonomy.

  • Subjective: Intent of the perpetrator is critical; reckless conduct is typically not punished.

ITER CRIMINIS

• Consummation: Occurs upon physical contact in instances of sexual assault or rape.

  • In rape, consummation occurs with penetration, not necessarily requiring complete penetration or ejaculation.

• Attempt: Begins with intimidation or violence, even if no contact has been made yet.

TRADITIONAL CLASSIFICATION

• Categories include sexual aggression, sexual assault, and sexual harassment.

THE CONSENT IN INTERNATIONAL LAW

• UN General Recommendation No. 35 emphasizes the need for clear consent in defining sexual crimes and eliminating gender-based violence.

EUROPEAN COURT OF HUMAN RIGHTS

• Case M.C. v Bulgaria (2003): Focuses on affirmative consent rather than required resistance from women.

  • The ruling highlights that law must respect the sexual autonomy of individuals.

THE CONSENT IN EUROPEAN LEGISLATION

• The Istanbul Convention mandates penalization of non-consensual sexual acts.

• Out of 27 EU States, 21 have ratified it and amended their legislation since its enactment (2014).

THE CONSENT IN EUROPEAN LEGISLATION (Cont'd)

• Discussions on consent-based definitions versus definitions that do not focus on consent.

THE CONSENT IN EUROPEAN LEGISLATION (Cont'd)

• Definitions featuring lack of consent are essential in 15 EU Member States, with ongoing reforms in others to adapt that focus.

DIRECTIVE ON VIOLENCE AGAINST WOMEN AND DOMESTIC VIOLENCE

• Requires Member States to criminalize non-consensual sexual acts explicitly, respecting women’s autonomy and the continuous nature of consent.

MODEL PENAL CODE

• Rape: Classified through various points of coercion and conditions indicating the lack of consent.

• Gross Sexual Imposition: Defined with less severe penalties under specific conditions.

GERMANY

• Changed from a victim-resistance model to one acknowledging lack of consent in broader situations since 1997, with strict punishments for such acts.

FRANCE

• Differentiates between sexual assault and rape; both requiring lack of consent but with varying definitions of coercion.

SWEDEN

• Recent legislation emphasizes voluntary participation in sexual acts, increasing penalties for non-consensual actions.

UK

• Focus on lack of consent, distinguishing sexual assault and rape based on the nature of penetration and absence of victim's consent.

BELGIUM

• Recognizes non-consent under various situations and recently expanded its laws to cover a broader array of sexual violations.

DENMARK

• Legislation revised in 2021 emphasizing that consent is paramount in all sexual interactions.

ITALY

• No distinction among types of sexual offenses but emphasizes the comprehensive nature of sexual violence laws.

SPAIN (1995)

• Outlined penalties for both sexual aggression and abuse, with distinctions based on the use of violence or intimidation.

SPAIN (2022)

• Amended laws to consolidate sexual abuse and aggression, making consent the basis for all such criminal offenses.

SPAIN (Cont'd)

• Aggravating circumstances include the method of commission, victim's vulnerability, and the use of drugs or coercion on the victim.

PROCEDURE

• Generally requires a complaint from the aggrieved party but allows for public prosecution in specific cases.

SEXUAL HARASSMENT

• Defined as acts of discrimination and violence that create hostile situations through unwelcome sexual solicitations.

SEXUAL HARASSMENT (Cont'd)

• Sexual Indemnity: Right to not be disturbed by sexual advances.

SEXUAL HARASSMENT IN PUBLIC PLACES

• Lacks specific international definitions but acknowledges it as an act of violence against women in various settings.

  • UN and Inter-American Conventions emphasize the need for comprehensive definitions and protections.

SEXUAL HARASSMENT IN PUBLIC PLACES (PERU)

• Defines harassment as unwanted sexual conduct affecting dignity in public spaces.

SEXUAL HARASSMENT IN PUBLIC PLACES (BELGIUM)

• Broadly addresses unwanted sexual conduct and its impact on individual dignity without specific definitions for parties involved.

SEXUAL HARASSMENT IN PUBLIC PLACES (PORTUGAL)

• Specifies punishable acts of sexual nature and their contexts.

SEXUAL HARASSMENT IN PUBLIC PLACES (INDIA)

• Explicitly lists actions that constitute sexual harassment, emphasizing unwanted advances and remarks.