Sexual abuse and sexual assault: These are the differences

Sexual abuse and sexual assault are two crimes included in the Penal Code that, although different, are usually the object of confusion. In fact, famous cases such as that of 'la manada' have only increased this doubt among the population or, at least, among those who do not have a minimally in-depth legal knowledge. Therefore, here we want to talk about what exactly are the differences between the two.

Crime of sexual abuse

It is defined in article 181 of the Criminal Code. Specifically, this text establishes that sexual abuse is any act by which a subject violates the sexual freedom or indemnity of another person without consent but without the use of violence or intimidation. The latter is particularly important as this is the fundamental difference with the crime of sexual assault.

Articles 182 et seq. of the Penal Code further define and regulate this offence. For example, the following requirements of sexual abuse are established:

• The victim does not give explicit consent for sexual intercourse to take place. This may be because of their inability to understand the situation or because they are not in a physically fit situation.
• The abuser often uses his or her power to persuade, manipulate or control the will of the victim, but not physical violence or intimidation.

These two characteristics mean that sexual abuse is mainly carried out by trusted persons within the family environment. Statistics show that it is usually men who are older than their victim. In fact, it is usually children and adolescents who suffer from this crime.
There are many types of sexual abuse. Here we are going to look at some examples to give you a closer idea of the reality:

• Engaging in sexual contact with a person who, because he or she is highly intoxicated or mentally disabled, is incapable of withholding consent.
• Using a relationship of power or superiority to compel another person to engage in sexual contact. Sexual abuse of minors, since it is often carried out by family members or acquaintances, is a good example here.
• Touching another person's genitals without their consent.
• Encouraging sexual touching under or over clothing.
• Producing pornographic material without the consent of the person being recorded.

Sexual abuse in the Penal Code is punishable by imprisonment of between 1 year and 6 years. In its less serious form, it can be replaced by a fine of 18 months provided that the perpetrator has no previous criminal record.

Crime of sexual assault

The most serious of those established as sexual offences in the Penal Code. Sexual assault is defined as the act of attacking the sexual freedom of a subject by means of intimidation or violence. Sexual aggression in the Penal Code is typified as a crime in articles 178, 179 and 180. But what are the requirements for it to receive this consideration and not the previous one? Let's look at them:

• There must be physical contact between the parties.
• There must be physical violence or, failing that, intimidation or threats.

The most serious type of sexual assault is rape. For rape to occur, oral, anal or vaginal penetration is a prerequisite. This can be done with a part of the body (penis, hands, etc.) or with an object. In both cases it has the same consideration. This also opens the door to a man being a victim of rape despite the fact that it is a crime suffered mostly by women.

In order to illustrate more precisely what the crime of sexual assault is in the Penal Code, we will give some examples:

• A man approaches a woman at the entrance of her home and forces her to have sexual intercourse with him by using force or intimidation. This can take place, for example, by showing her a knife. It can be considered as the best example of the crime of rape in the Penal Code.
• Forcibly touching the genitals of another person.
• Forcing another person to touch the genitals in order, for example, to masturbate or perform fellatio.
• Engaging in 'consensual' sexual intercourse by threat or blackmail.
• Having sexual intercourse with a person who is incapable of giving or withholding consent.

Sexual assaults in the Penal Code are punished with prison sentences of between 1 and 15 years, depending on the circumstances surrounding it. The penalty for rape, which as we said before is the variant of this criminal modality in which there is penetration, is located within the highest segment.

Differences between the crime of sexual assault and sexual abuse

As can be seen from the definitions given by the Criminal Code, the fundamental difference between both crimes lies in the presence or absence of violence or intimidation. However, after the controversy derived from the 'la manada' case mentioned at the beginning of this article, the Supreme Court was forced to rule on the matter. Specifically, it did so through a judgment of its Second Chamber on 24 April 2019.
In this judgment, the Court establishes the differences between both crimes as follows:

• The difference between sexual abuse and sexual assault is not based on whether or not there is carnal access (penetration), but on whether intimidation or violence was necessary to carry out the criminal activity.
• Sexual assaults are divided into a basic offence (without carnal access) and an aggravated offence (with penetration).
• The key to determining a crime of sexual abuse is the presence or absence of consent. In sexual assault it is not relevant as the intimidation or violence used makes it impossible to give consent.

Moreover, in this judgment, the Supreme Court took on the task of defining more precisely what the aggravated subtypes provided for in Article 180 of the Criminal Code are. Specifically, it states that the penalties will be increased depending on how it happened:

• The dynamics of the action. That is, whether the violation was particularly humiliating or degrading.
• The use of dangerous means. Knives, guns or any object that could seriously endanger the victim's life if used.
• The number of active subjects. Whether the rape has been carried out simultaneously or successively by two or more persons.
• The pre-existing relationship between the victim and the aggressor. Whether there is kinship (father and daughter, for example) or superiority (boss and secretary, for example).
• The vulnerability of the passive subject. If, for example, they are very young or very old, if they suffer from an illness, if they are mentally or physically disabled, etc.

This judgment of the Supreme Court enters even more 'rocky' terrain when talking about non-consensual sexual abuse. In these cases, consent has not existed (although it has not been explicitly denied) or has been obtained in an invalid or vitiated manner. This includes those who have sexual contact with a person who is sensory deprived (through drunkenness, for example) or after overriding the victim's will (through the use of drugs such as 'burundanga').
This point, despite having been intended to better define the crime, is today the subject of controversy, above all, by groups who maintain that such an action is not abuse, but rape. So much so that in the Congress of Deputies there have already been proposals to unify both actions into a single type of crime. At least as far as these aggravated subtypes are concerned.

In short, consent to sexual relations in the Penal Code is not what really makes the difference between the crimes of sexual assault and sexual abuse, but rather the presence of intimidation or physical violence. Therefore, whenever you are in doubt as to whether a case falls into one or the other, think about whether or not this aggravating factor has been present.