Índice
Although we are in a modern era where respect for the rights of others is the main thing, there are still these types of crimes how is he sexual abuse by prevailing, which often goes hand in hand with an archaic upbringing and without respect for others.
Sexual abuse tends to be a problem in all countries. In Spain we can find that by 2021 up to 400,000 cases of sexual violence were registered. Likewise, in the world this statistic has increased.
This time we will be talking about prevailing sexual abuse, all in a detailed way and that you can easily understand.
what is he prevailing sexual abuse?
Surely you are wondering what is prevalence? This is considered an aggravating factor in different crimes, such as sexual abuse. Prevalence is the ability of the perpetrator of the crime to take advantage of the trust or superiority he has over the victim.
Are you looking for a lawyer specialized in Criminal Law?
we help you find a criminal lawyer.
We have a wide network of collaborating lawyers in all Spain.
These circumstances become a specific or generic aggravating circumstance. It is important to mention that the prevalence occurs when it is decisive for the aggressor to commit the crime.
However, there are many women who are under situations of aggression and do not report it or do not notice it. A clear example of this is the crime of prevailing sexual abuse, in which saying "no" due to socio-personal condition is much more complicated than saying "yes" even if you are not willing to perform the sexual act.
It is important to emphasize that for the performance of the sexual act it is important that the consent of both parties can be obtained. Likewise, being in a marriage does not obligate either party to perform a sexual act in a mandatory manner.
He prevailing sexual abuse, is totally different from a violation, since one of the parties agrees, but under the economic or public superiority of the perpetrator. It is important to emphasize that superiority is not only given by a physical condition, but all the characteristics that surround and can be used against the victim.
What are the types of aggravating circumstances for prevailing?
There are 2 types of aggravating circumstances, which can be generic or specific.
Prevalence as a generic aggravating factor
There are different circumstances that can be taken as generic aggravating circumstances, among them we can mention:
Situation of superiority: this is the most complex, since it can be seen in different areas, be it work, knowledge or any point that makes the aggressor feel superior to the victim.
Confidence of the victim: we can not only see this in the prevailing sexual abuseIt is also considered an aggravating factor in other crimes such as fraud.
Public nature of the perpetrator of the crime: if the perpetrator of the crime is a public official and manages to take advantage of his position to commit a crime, it will be a generic aggravating circumstance.
These generic situations tend to be aggravating in many crimes, not just the sexual sphere.
Prevalence as a specific aggravating factor
When we talk about prevailing as aggravating factor specific, we have to say that it is rooted in sexual assaults. In this case, the perpetrator is aware of the superiority he has over the victim and takes the opportunity to sexually abuse her.
What articles of the law defend us from prevailing sexual abuse?
Article 36.2 of the Council of Europe Convention for the prevention and fight against violence against women and the domestic violence, tells us that the sexual act must be voluntary and free for both parties.
Article 42 of the Istanbul Convention, says that, in the consent of the sexual act, customs, religions, culture or even traditions, will not be justifications for the commission of the crime.
Culture or religion is something that is respected within our laws, but this has a limitation, until the human rights of another person are affected.
He article 181 of the penal code tells us that:
In its first section, it talks about violence or intimidation as a means to reach the sexual act, becomes a crime, which can be punished between 1 to 3 years, however, if there is carnal access, the penalty can be increased from 4 to 10 years.
Now, within this article we have the sexual abuse by prevailing, since in its 3rd section it does not say that, the prevailing, has the same sentences mentioned above.
What is the difference between bullying and intimidation?
These are 2 terms that tend to be confused a lot, since they have certain similarities, however, within intimidation you can see an attempt at physical, verbal or psychological aggression, however, at the time of committing the crime there is no type of consent of the victim.
Now, when we talk about prevalence, there is a false consent to the sexual act, this occurs due to a situation of superiority on the part of the aggressor. To make it clearer, when there is prevailing sexual abuse, the consent of the sexual act is given by a condition of the aggressor.
In fact, the law sees these two crimes as so different, that they are in different articles of the law. Prevailing can be found in article 181.3 and intimidation in 178 of the penal code respectively.
As we can see, on many occasions this situation is more common than it seems, however, the victim, out of fear or often due to ignorance, does not report the attacker.
