Prevailing as an aggravating factor for certain crimes

The prevalence consists of a specific or generic aggravating circumstance for some crimes. This is the act in which the perpetrator takes advantage of a relationship of superiority, trust or prestige to commit a crime.

What does prevalence consist of?

Prevalence is defined as the act of taking advantage of an advantageous position to facilitate the commission of a crime.

That is, through privilege a person involved takes advantage over the victim. In most cases it occurs in a position of superiority, prestige, power and trust on the part of the author.

It consists of a circumstance that modifies criminal responsibility and aggravates the punishment. It can act as a specific or generic aggravating circumstance.

Generic aggravating conditions are accidental facts of the crime that do not condition the existence of the crime. For their part, the specific aggravating conditions are essential for the crime to be consummated.

Prevalence as a generic aggravating circumstance

The Penal Code establishes several prevailing conditions so that it can be considered a generic aggravating circumstance. These are:

· Prevalence of a fact of hierarchy (abuse of power).

· Use the victim's trust.

· Take advantage of the public character of the author of the crime, whether a public official or authority.

· Take advantage of a kinship link between the victim and the guilty party. This particular case is defined as a mixed kinship circumstance.

If any of these conditions exist in the execution of the crime, the punishment provided for this crime is awarded in its upper half.

Prevalence as a specific aggravating circumstance

On the other hand, prevalence is a condition that aggravates the basic mode of various crimes of the Penal Code. The law indicates in each of these what the circumstance of preemption consists of and its criminal effects. The latter will depend largely on the origin of the crime.

There are some crimes in which prevalence functions as a specific aggravating circumstance. These are sexual abuse, sexual assault, prostitution and sexual harassment. Revealing secrets and discovery by a public authority is also punishable. In addition to this, they also include: corporate crimes, influence peddling and immigrant trafficking, among many others.

The Supreme Court has expressed itself on the case of prevalence in sexual abuse. Based on this, it establishes as a priority:

Any position that confers on the active subject a position of privilege with respect to the passive subject. The author not only takes advantage of this situation, but is fully aware that he is given a context of superiority, to sexually abuse the victim. In this way, the passive subject does not give free consent to the act, but is coerced or pressured by said situation.

In these scenarios, the posture of hierarchy and superiority must be evident, noticeable and manifest. That is, it must be objectively visible. Additionally, it must also be effective and have sufficient repercussions to determine the freedom and vitiate the approval of the subject on whom the act is carried out.

Differences between intimidation and preemption in crimes that threaten sexual freedom

In the first instance, it is essential to take into consideration the distinction between intimidation and preemption in crimes against sexual activity.

If it happens the prevalence, we find ourselves facing a crime of sexual abuse indicated in article 181.3 of the Penal Code. On the other hand, if what is generated is intimidation, it is a crime of sexual assault aspected in article 178 of the Penal Code.

This dissimilarity was crucial for SAP opinion 38/2018, dated March 20. This sentence is popularly known as “The Pack”.

In accordance with the Spanish Civil Code, in its article 1267, Intimidation is understood as any act in which the passive subject is inspired with a well-founded or rational fear of suffering serious harm. in himself in his property. To determine the severity of bullying, it is necessary to take into account aspects such as the sex, age and condition of the person. 

Differences between crime of sexual abuse and crime of sexual assault

Before explaining the differences between both crimes, it is important to know where they are regulated in the Penal Code.

Crime of sexual abuse

It is specified in articles 181, 182 and the following in the Penal Code.

Article 181 establishes the following concept: someone who, without exercising intimidation or violence and without consent, carries out actions that harm the sexual freedom of another person.

This crime is sentenced according to the age of the victim or if there has been carnal contact. In this case the penalty corresponds to prison of 1 to 6 years or a fine of 18 months.

crime of sexual assault

This crime is established in articles 178, 179 and 180 of the Penal Code.

He article 178 concludes that: the crime of aggression is understood to be the act in which the sexual freedom of a third person is attacked using violence or intimidation.

This type of crime is punishable, depending on various conditions, with imprisonment from 1 year to 15 years.

Some differences

1. In the current modality of criminal registration of crimes that violate sexual freedom, the distinction between sexual abuse and sexual assault does not focus on the existence of the carnal act, but on the use of intimidation or violence.

2. In the crime of sexual abuse, no violence or intimidation is used. However, in sexual assault, yes.

conclusions

Prevalence is defined as the act of taking advantage of a position of privilege to achieve a criminal objective over a passive subject. The Penal Code establishes that, when there is prevalence, it is made clear that there was no intimidation or violence to consummate the crime.

In these circumstances, the active subject takes advantage of a link with the victim to achieve the desired result without their consent.