Sexual Assault: Penalties and Legal Aspects in the Penal Code
Sexual Assault
Articles 178 et seq. of the Penal Code punish anyone who violates another person’s sexual freedom through violence or intimidation. The offense has a basic structure, a qualified violation (if involving intercourse or object insertion), and several aggravating factors increasing penalties.
Article 178
Violating another person’s sexual freedom using violence or intimidation is punishable by one to five years’ imprisonment for sexual assault.
Article 179
When sexual assault involves vaginal, anal, or oral intercourse, or the introduction of body parts or objects, the perpetrator is guilty of rape, with imprisonment from six to twelve years.
Article 180
The penalties for Articles 178 and 179 increase to five to ten years and twelve to fifteen years, respectively, under the following circumstances:
- Particularly degrading or humiliating violence or intimidation.
- Acts committed by two or more people.
- Victim is particularly vulnerable due to age, illness, disability, or status (except as defined in Article 183).
- Perpetrator uses a superior or familial relationship (ascendant, descendant, sibling, or spouse).
- Perpetrator uses weapons or other dangerous objects likely to cause death or injury (as defined in Articles 149 and 150 of the Penal Code), without prejudice to penalties for death or injury.
If two or more of these circumstances occur, the higher penalty is imposed.
Basic Sexual Assault (Article 178)
Punishable by one to four years’ imprisonment, this involves violent acts without sexual intercourse or object insertion. Examples include touching or fondling. Forcing the victim to perform acts on themselves or others also constitutes assault. The social context is crucial.
Qualified Violation (Article 179)
Penalties of six to twelve years apply to rape, including vaginal, anal, or oral intercourse, and object insertion. The severity reflects the violation of sexual freedom and potential physical harm. Oral penetration also carries a risk of disease transmission.
The Penal Code defines intercourse as penetration of the male sexual organ (vagina, anus, or mouth), including forcing the victim to participate. Object insertion requires the object to be solid and similar in size and shape to the male sexual organ, although instruments with sexual intent or body parts (hands, fingers, tongue) are also included. Vaginal and anal penetration are clearly defined; oral penetration may be more ambiguous.
Common Questions
The Subject of the Conduct
Both men and women can be active or passive subjects in sexual assault. The issue of whether this equality is fully realized in practice arises in cases of rape in heterosexual relationships (woman as active subject, man as passive) and homosexual relationships (both subjects women). In the first case, forcing vaginal, anal, or oral penetration is considered typical behavior. In the second case, only object insertion is possible; other forms of sexual violence fall under the basic rate.
The victim can be male or female, regardless of prostitution. Marriage does not reduce a woman’s sexual freedom; rape within marriage is a crime. Mistaken belief of consent is irrelevant if violence or intimidation was used.