Sexual Assault and Abuse Offences in Marbella

The victim's statement as evidence for the prosecution: the triple test

Given that these offences are generally committed in secrecy, without witnesses and often without conclusive forensic evidence, case law accepts that the victim's statement may, on its own, constitute sufficient evidence for the prosecution to overcome the presumption of innocence, provided it passes an established triple test: absence of subjective incredibility, that is, the non-existence of improper motives such as resentment, revenge or self-interest that would deprive the testimony of the ability to generate certainty; verisimilitude, through corroboration of the account with objective peripheral data; and persistence in the incrimination, understood not as a literal repetition but as the substantial consistency of the various statements throughout the proceedings. A deficiency in one of these parameters does not automatically invalidate the statement, but when it constitutes the only evidence for the prosecution, a deficient showing across the set prevents it from being sufficient, on its own, to sustain a conviction.

Credibility versus reliability: a recent distinction of enormous relevance

The Tribunal Supremo (Spain's Supreme Court) has recently introduced a distinction of great practical significance between the victim's personal credibility and the reliability of the information they provide:

"...una víctima puede resultar personalmente creíble... y, sin embargo, facilitar información que no supera el umbral de fiabilidad por falta de coherencia interna, ausencia de corroboración o incompatibilidad con datos objetivos."

This distinction requires the court to assess both dimensions separately, and it constitutes one of our most effective defence strategies: the absence of improper motives is not, on its own, enough to sustain a conviction if the specific account does not withstand comparison with the available objective evidence. In a complementary sense, another recent ruling has recognised that victims of these offences may show a "line of progressiveness" in their statements, with specific changes that do not affect the essential core of the account — a doctrine that requires precisely distinguishing between contradictions that affect substantial matters — what happened, when, how — and those limited to incidental details.

The transitional regime: from the 2022 reform to the 2023 correction

Ley Orgánica 10/2022 (Spain's 2022 "only yes means yes" reform of the Criminal Code) unified the former offences of sexual abuse and sexual assault into a single offence built around consent, with a new sentencing range whose minimum limit turned out, in certain cases, to be lower than under the previous rules. In application of the constitutional principle of retroactive application of the more favourable criminal law under article 9.3 of the Constitution and article 2.2 CP, numerous final convictions were reviewed downward. Ley Orgánica 4/2023 subsequently corrected this sentencing range, reintroducing the distinction in penalties between sexual assault committed with violence or intimidation and that committed without them, although — as its own Explanatory Memorandum specifies — this correction only applies to acts committed after it came into force, on 29 April 2023, while earlier acts remain subject to the framework of Ley Orgánica 10/2022 insofar as it proves more favourable. Precisely determining which wording of the Criminal Code applies to each case according to the date of the acts — and, where appropriate, structuring an application for sentence review under the specific rules set out in the Second Transitional Provision of LO 4/2023 — is an unavoidable technical analysis in any proceedings of this kind opened or decided during this period.

The distinction between the basic offence and the aggravated offence involving penetration

Regardless of the applicable transitional regime, the Criminal Code currently in force maintains a significant distinction in penalties between the basic sexual assault offence under article 178 CP and its aggravated form under article 179 CP, reserved for cases in which the assault consists of vaginal, anal or oral penetration, or the insertion of body parts or objects through either of the first two routes, carrying a considerably higher penalty. Correctly classifying conduct under one form or the other, as well as the possible presence of the additional aggravating circumstances under article 180 CP — acting jointly with two or more persons, use of weapons or other dangerous means, particular vulnerability of the victim, among others — requires a rigorous analysis of the proven facts, which we carry out with the utmost technical detail in every case.