Sexual Offences in Spain: Law 10/2022 Defence

Sexual offences in Spain now operate under a legal framework that is radically different from the one in force before October 2022. Organic Law 10/2022 on the comprehensive guarantee of sexual freedom substantially reformed the criminal offences, modified the penalties and changed the standard that the court must assess in order to convict.

For the accused, these changes have direct consequences: the legal classification of the facts, the aggravating circumstances and the defence strategy can no longer be built on the previous wording of the law.

What changed in sexual offences under Organic Law 10/2022?

The most significant reform introduced by Organic Law 10/2022 was the merger of the former offences of sexual assault and sexual abuse into a single offence: sexual assault. Before the reform, the Spanish Criminal Code distinguished between both categories depending on whether violence or intimidation had been used. From the entry into force of the law, the decisive criterion is the absence of consent. Any sexual act without freely expressed consent constitutes sexual assault, regardless of the means used.

The basic offence of sexual assault is set out in Article 178 of the Spanish Criminal Code, as amended by Organic Law 10/2022. Article 179 of the Spanish Criminal Code defines rape — non-consensual penetration — and provides for a higher penalty. Article 180 of the Spanish Criminal Code sets out the specific aggravating circumstances for sexual offences: the use of violence or intimidation, joint action by two or more persons, the particular vulnerability of the victim, a relationship of superiority or dependency, and the use of means to override the victim’s will. Therefore, the existence of aggravating circumstances may substantially increase the applicable sentence.

In addition, Organic Law 10/2022 introduced the offence of street sexual harassment in Article 173.4 of the Spanish Criminal Code and expanded the range of punishable conduct in the digital sphere. However, the most relevant change for the defence is the shift of the debate towards consent: it is no longer enough to prove that there was no violence; it is necessary to establish that there was freely expressed consent.

Common situations involving the new sexual assault offences

The new framework for sexual offences creates particularly complex situations in certain contexts. The first is that of relationships between people who know each other — partners, former partners or acquaintances — where the debate around consent is more difficult to resolve through objective evidence. The second is that of isolated contacts between strangers in nightlife settings, where the consumption of alcohol or other substances may affect both the capacity to consent and the reliability of the later account.

The third is the digital sphere: the non-consensual sending of sexual images or content, the unauthorised dissemination of intimate recordings and sexual harassment through social media are punishable forms of conduct after the reform. In addition, Organic Law 10/2022 expressly incorporated the non-consensual dissemination of sexual images, colloquially known as “revenge porn”, as an autonomous offence under Article 197.7 of the Spanish Criminal Code, although that provision already existed before the reform with a different wording.

In all these cases, the common element is that the defence can no longer focus its argument solely on the absence of violence or intimidation. The strategy must therefore be directed at establishing consent, challenging the credibility of the victim’s account or disputing the sufficiency of the prosecution evidence.

Consent as the core of the evidential debate

After Organic Law 10/2022, consent is not presumed: it must be capable of being evidenced. In practice, this shifts the focus of the evidential debate. The defence must show that the accused acted with a well-founded belief that freely given consent existed. However, that belief cannot be merely subjective: it must be supported by objective indications.

The assessment of messages, prior attitudes, communications after the alleged event and the context of the relationship therefore acquires central evidential importance.

Building a defence in sexual offences under the new law

Defence in sexual offences under the new legal framework requires a strategy built from the very beginning of the investigation. The first critical step is to review all communications between the parties before and after the reported event: text messages, chats, emails and social media posts may provide relevant indications regarding consent or the credibility of the complainant’s account.

Secondly, the defence must analyse the internal consistency of the victim’s account throughout the proceedings. If there are contradictions between the complaint, the investigative statement and the testimony at trial, those inconsistencies may call into question the reliability of the testimony. In addition, where there are contextual witnesses — persons present before or after the alleged event — their testimony may provide corroborating elements or elements that contradict the prosecution’s version.

At Fechenbach Abogados, David Fechenbach Marcos, ICAM No. 122770, works on defence in sexual offences in Spain from the investigation stage, with particular attention to the changes introduced by Organic Law 10/2022. This involves identifying from the outset whether the provisional legal classification submitted by the prosecution is correct, whether the alleged aggravating circumstances are actually present and whether the prosecution evidence is sufficient to overcome the standard of reasonable doubt. The firm operates in Madrid, Ibiza and Cádiz.

However, the defence cannot simply wait for the oral trial. During the investigation stage, it must actively propose investigative measures capable of producing favourable evidence: psychological expert reports on the credibility of testimony, forensic expert reports where medical reports exist, and any documentary evidence that contextualises the relationship between the parties.

Why acting without specialist advice is especially risky

Sexual offences carry one of the strongest forms of social stigma and may involve some of the most severe penalties. A conviction for sexual assault involving penetration under Article 179 of the Spanish Criminal Code may result in several years’ imprisonment, together with disqualification measures and registration in the sex offenders register. In addition, during the investigation, precautionary measures may be adopted that seriously affect the life of the person under investigation: prohibition on approaching the alleged victim, prohibition on communication and, in the most serious cases, pre-trial detention.

The new law has expanded the scope of the criminal offences and shifted the focus of the debate towards consent. Therefore, a defence that does not know the new legal framework in depth may overlook decisive arguments or raise strategies that are no longer effective under the current wording of the Criminal Code. In addition, deadlines in these proceedings are strict: investigative measures not requested during the investigation stage cannot be introduced later.

However, it is also true that not every complaint for sexual offences ends in a conviction. Insufficient evidence, lack of credibility of single-witness testimony or proof of consent may provide solid grounds for acquittal. That possibility can only be achieved through a rigorous technical defence built from the beginning of the proceedings.

Contact Fechenbach Abogados

If you have been reported for a sexual offence or are the subject of a criminal investigation in this area, Fechenbach Abogados can analyse your case from the very beginning.

We provide assistance in Madrid, Ibiza and Cádiz. Contact us without obligation at abogados.fechenbach.es.