Accusation of sexual assault: the rights of the accused and the keys to the defence

An accusation of sexual assault is one of the most serious situations a person can face in the Spanish criminal system: the penalties are very high, the process may drag on for years and the reputational impact can be devastating even before any judgment. In this context it is worth remembering that the presumption of innocence is not an empty formality: it is a fundamental right that protects every accused person, whatever the nature of the accusation, and the burden of proving guilt falls on the prosecution, not on the accused.

Organic Law 10/2022, known as the Only Yes Means Yes Act, profoundly reformed the regulation of offences against sexual freedom. It unified under the concept of sexual assault all conduct that was previously divided between assault and abuse, establishing that any sexual act without consent constitutes assault. The central element of the offence is the absence of consent, defined as the free and express act that must exist at all times. This has an important consequence for the defence: the key to the process is no longer always whether or not there was force, but whether or not there was consent.

The penalties are high: for the basic offence of sexual assault without penetration, one to four years’ imprisonment; for sexual assault with penetration, four to twelve years, with aggravations that may exceed fifteen years. Conviction may carry a restraining order, supervised release, disqualification from working with minors and registration in the Register of Sex Offenders.

If you receive an accusation of this kind, the first hours are crucial. You must immediately contact a criminal lawyer specialising in offences against sexual freedom, who must be present before any statement. You must exercise the right to silence until the lawyer has analysed the situation. You must not contact the complainant or their relatives, because it may be interpreted as an attempt at intimidation. And it is advisable to preserve all available evidence: messages exchanged before, during and after the events, location data and testimonies about the context.

In most proceedings following the 2022 reform, the central issue is consent. The prosecution must prove that the act took place without it; the defence may argue that it existed, was free and was express. Courts analyse the context of the prior relationship, the communications before and after, the circumstances of the encounter and the consistency of the accounts.

The most frequent defence arguments are that consent existed, relying on messages and testimonies; the inconsistencies in the complainant’s statement, which may call their credibility into question without attacking the person; forensic expert evidence, with party-appointed experts offering alternative interpretations; and, where there are objective indications, the possible motivation behind the complaint.

It is worth remembering that, although the victim’s statement has evidentiary value, to base a conviction on it alone it must meet the criteria of credibility, persistence and absence of spurious motives. If the judge orders pre-trial detention, the lawyer must appeal it immediately, establishing the accused’s ties to the community and proposing alternative measures.