There is still much debate about the application of the crime of sexual assault throught social media. Mainly because there is no physical contact at the time of an online interaction between a victim and the accused.
However, one must remember the many manifestations of violence or aggression that do not resort to the physical. This is where the jurisprudential application or conviction of one crime or another is questioned.
Today a very particular case is brought that exposes the present topic to be discussed.
In #JurisprudenciaTuitaTuit on the crime of sexual assault through Social Networks
Can you really commit a crime of sexual assault throught social media?, there are several pronouncements on this. By way of analysis, STS 447/2021 of May 26 arises in question, a perfect example of this particular debate:
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facts of the case
In regards The accused, was posing as a minor to start a conversation with the later victim. The victim 12-year-old who, through the social network Tuenti and WhatsAppHe spoke with the defendant.
The impostor transferred by message a nude photo of another minor, precisely by which he was posing. The objective was to ask the victim for nude photos of her, a fact to which the girl would refuse.
However, the defendant would proceed to declare a series of threats with denouncing her and her parents for possessing said photo. At the cost of saying that it was a crime, the minor proceeded to send intimate images through WhatsApp.
In the images, she was displayed naked, in angles that showed her breasts, genitals and buttocks. In addition to having a video where she showed herself naked in her lower body half and masturbating.
At this point, the defendant was requesting the minor to send more files with similar content, scaring her in the process. If he refuses, the impostor will proceed with sending the files that he had previously sent to all his contacts on Tuenti.
The events end with the actions taken by the victim's father who manages to discover the facts. Properly filing your complaint with the authorities.
The subject of the crime of sexual assault through social media arises with the Provincial Court. Body that sentences the defendant for the crime of making pornographic material that harms minors.
On the other hand, the crime of sexual assault for which he was accused in the first instance is acquitted in his sentence.
It is at this point when the fiscal Ministery interposes his appeal before the TS for an improper criminal application. Appealing for a reinterpretation of articles 178 and 180 of the penal code, understanding that a sentence could be given for sexual assault.
It justifies that a mode of sexual assault is identifiable that is marked by the clear intimidating elements of the accused.
In competition to the TS understand the resources that must be estimated since all the elements are established in the proven facts. Elements that determine the application of the crime of sexual assault immersed in article 178 CP.
The main factor would be the commission of a action injurious to the freedom of personal self-determination. Involving an afflictive component of the sexual indemnity of the one who is presented as a minor, applying the element of intimidation.
Violence in social networks
under a digital stage (I understand a physical distance between perpetrator and victim), the essential elements of violent conduct are not altered. In fact, this social dimension of ICTs can be established as a powerful means of intimidation that produces harmful impacts on legal rights.
Under these conditions, the term cyberviolence is included under the following interpretation:
- “Use of computer systems to threaten, facilitate or cause people with violence, which may cause damage or suffering. Consequences that derive mainly from psychological, economic, physical and sexual conditions.”
This allows the TS, as alleged by the Public Prosecutor, understand that the proven fact does not describe deceit. Fact that is qualified by the Court of instance in aspiration to obtain recordings of the minor.
It is a matter of accepting, instead, a context of intimidation administered by explicit threats regarding the denial of the minor. As demonstrated in the facts, with the intention of revealing her images to all of the minor's contacts on Tuenti.
Thus, it is clear that the risk for a woman who is less than exposure of images of his body naked. Showing even acts of sexual content that was intended to be distributed by a social network with a lot of social participation, generating consequences.
Consequences that transcend the attempted injury to your right to privacy and privacy. It also generates a profound alteration in their personal relationships and crises in their individual and social self-perception.
Conclusions about the case
There is no doubt about the link between crime of sexual assault through social networks in a new cyberspace. Where social interaction is weakened by privacy protection frameworks.
The disclosure in RRSS of what the sexual objectification has generated to the minor victim is very important. Being a minor and a woman, the effects and consequences can be very serious at the level of their vital planes.
Leading to a scenario of what can be called the digital scenario of polyvictimization.
There is no doubt that for what is called "sextortion” constitutes a very serious form of bullying cyberviolence. Where the defendant in this case must apply the mechanisms of normative value regarding the intimidation of a minor for sexual purposes.
What is prescribed is that through violence or intimidation one can easily violate sexual freedom. Definitively including all types of aggressions that can be manifested at a distance or online.