When does fleeting touching constitute a crime of sexual assault?

To answer this question, it is necessary to know the circumstances of the specific case: the area of the body where the touching occurred, the context in which the events occurred…

However, as criminal lawyers specializing in sexual assault in Barcelona , we can affirm that even a fleeting touch in certain areas of the body, such as the breast or buttocks, can currently constitute a crime of sexual assault.

In fact, there are an increasing number of court rulings convicting people of this crime in cases of unexpected or fleeting touching.

What Are Fleeting or Surprise Touches?

Casual or unexpected touching is an act that involves non-consensual, brief, and unexpected physical contact, which can occur in any setting, whether public or private.

These non-consensual sexual touchings violate the victim’s sexual freedom and are considered a crime of sexual assault. In many cases, the victim’s statement may be the only evidence needed to convict the attacker, as explained in this article on the importance of the victim’s statement in sexual assault crimes.

Legal Definition of Fleeting Touching in the Context of the Crime of Sexual Assault

In the legal context, fleeting or unexpected touching is defined as sexual assault when the contact is not consensual and has a clear sexual connotation. Spanish law classifies these acts as sexual assault, even if there is no violence or physical intimidation.

The Penal Code establishes that any act that violates a person’s sexual freedom, even if brief or momentary, may be considered a crime of sexual assault.

What types of touching constitute the crime of sexual assault?

To constitute a crime, the touching must have an undeniable sexual meaning. Years ago, courts also required that the perpetrator acted with the intention of satisfying his sexual desires (what was known as libidinous desire), but this subjective requirement is no longer met. Thus, it is sufficient that the touching have a clear sexual meaning.

The most obvious cases are those in which the touching occurs in erogenous zones, such as the breasts, buttocks, or genitals. However, this is not an essential requirement.

Current jurisprudence dictates that any such act must be punished according to its severity, but it is still considered a crime of sexual assault.

How were unexpected gropings punished before the 2022 reform?

Before the 2022 reform, fleeting or unexpected touching was considered a crime of sexual abuse in most cases. This crime covered any act that violated the victim’s sexual freedom, as long as violence or intimidation was not used, but non-consensual physical contact was involved.

However, in less serious cases, courts often condemned these acts under the umbrella of unjust harassment, a now-repealed misdemeanor offense. This meant that non-consensual touching that did not involve violence or visible physical harm could receive lighter penalties.

Jurisprudential change in 2017. Fleeting touches considered sexual abuse

In 2017 , a new wave of jurisprudence changed the legal treatment of casual touching . Following this change, any non-consensual touching with sexual connotations, however brief or surprising, was now considered sexual abuse .

This stricter interpretation included quick touching , eliminating the possibility of condemning as unjust harassment , and established more severe sanctions.

New 2022 reform regarding sexual assault

Elimination of the Distinction Between Abuse and Sexual Assault

Following the 2022 reform, which eliminated the distinction between sexual assault and sexual abuse, unexpected touching, which is typically characterized by the absence of violence or intimidation and the lack of the victim’s consent, now constitutes the crime of sexual assault.

Some courts have continued to apply the crime of unjust harassment to minor unexpected touching. The Supreme Court recently clarified that unexpected, momentary, or fleeting touching constitutes the crime of sexual abuse, although the lesser severity of the act must be taken into account when determining the sentence.

Specifically, the Supreme Court clarifies the above in its Judgment No. 621/2023, of July 17.

What penalties are imposed in cases of sudden or fleeting touching?

Following the 2022 reform, the law is clearer in its criminalization of fleeting or unexpected touching. Sexual assault penalties now apply to all non-consensual touching, eliminating the possibility of treating it as unjust harassment (a lesser offense that has been repealed).

Penalties may vary depending on the severity of the act and the circumstances of the case, but current legislation provides for prison sentences for non-consensual touching.

According to the Spanish Penal Code, unexpected touching is considered a sexual assault offense and can carry penalties of:

• 1 to 4 years in prison, depending on the severity and circumstances of the act.
• In less serious cases, fines or lesser penalties may be imposed, especially when there is no violence or intimidation.

However, this attenuated subtype cannot be applied in cases involving violence or intimidation, nor in cases where the victim’s will has been overridden for any reason.