The crime of rape in the Spanish Criminal Code: analysis of the difficult delimitation between intimidation of sexual assault and «prevalimiento» of sexual abuse. A revision in the light of the international regulations

  • Itziar Altuzarra Alonso Universidad de Deusto
DOI: https://doi.org/10.18543/ed-68(1)-2020pp511-558
Keywords: Criminal law, Sexual violence, Sex crimes, Sexual freedom, Rape, Consent, Gender

Abstract

Characterized by a high percentage of victimization of women, the crime of rape is historically one of the most sanctioned sex crimes. Its regulation, both at an international and national level, keeps on evolving since it is a criminal behaviour deeply related to the progressive process of awareness about the deconstruction of the patriarchal system that greatly impacts on the collective social sensitivity. The main aim of the work consists on shedding light on the doctrinal and jurisprudential broad debate generated around the consideration of violence and intimidation as defining elements of the crime. In this line, the Spanish Criminal Code requires one of both methods in which to commit the crime to consider that any attack against sexual freedom including sexual intercourse constitutes rape, what implies the creation of a dividing, though extremely subtle, line between rape through intimidation and sexual abuse through prevalimiento. This regulation is not conformed to the international legal standards, and specifically European, that Spain ratified five years ago by virtue of the Istanbul Convention. In consequence, it can be concluded that the national legislation, despite having experienced an intense metamorphosis, is still in need of a review and reformulation of the crime of rape aimed to its consideration around the absence of consent of the victim as the only defining element. Finally, it is also deduced that the prosecution of the mentioned crime urges the implementation of a gender perspective training addressed to judges and magistrates whose legal motivations have decisive power.

Received: 05.02.2020
Accepted: 08.06.2020
Published online: 03.07.2020

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Published
2020-07-03
How to Cite
Altuzarra Alonso, Itziar. 2020. “The Crime of Rape in the Spanish Criminal Code: Analysis of the Difficult Delimitation Between Intimidation of Sexual Assault and «prevalimiento» of Sexual Abuse. A Revision in the Light of the International Regulations”. Estudios De Deusto 68 (1), 511-58. https://doi.org/10.18543/ed-68(1)-2020pp511-558.
Issue
Vol. 68 No. 1 (2020)
Section
Premio «Juan Churruca»

Last update: 08/02/2022

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