Article 184 of the CP is in charge of regulating the crime of sexual harassment, a crime that punishes those who request favors of a sexual nature, for themselves or for a third party, within the scope of an employment, teaching or service provision relationship, continued or habitual, and with such behavior provokes the victim an objective and seriously intimidating, hostile or humiliating situation.

This crime is punishable by a prison term of three to five months or a fine of six to 10 months.

The protected legal asset is the same as that of the rest of the crimes that appear contemplated in Title VIII of Booklet II of the Penal Code, which is none other than sexual indemnity.

However, this criminal figure, contemplated in article 184 of the CP., Tries to protect not only the sexual freedom of the taxpayer who is compelled by another person who requests a favor of that nature but also the protection of the victim in their individual freedom in other areas, such as work, in which this type of behavior can compromise the normal environment that should exist in the usual workplace.

In this way, freedom is protected in its internal phase, not having to exist physical contact, wherein in many cases, the attack on sexual freedom occurs much earlier.

Target type

The crime of sexual harassment, in its basic type of article 184.1 of the CP., Requires the concurrence of three requirements for its application:

1. There must be a claim, the request for favors of a sexual nature between equals, this request can be verbal, written, by gestures, or even by insinuations. It consists of externalizing a claim to a purpose with a clear sexual connotation. The behavior is consummated with the mere request. There are those who understand that it must not be a single act, but must be a continuous or repeated claim. Favors can be for the applicant himself or for a third party. If there were touching, it would be sexual abuse, although if they are fleeting they are considered sexual harassment.
2. There must exist between the perpetrator and the victim's regular or ongoing employment, teaching, or service relationship.
3. The result is required, that as a consequence the victim is placed in an objectively humiliating, hostile, or intimidating situation. There must be a certain reiteration in the petition because the result is required to be proven.

Given these requirements, we understand that we are facing an objective element in the commissive modality, in that the action consists of requesting favors of a sexual nature. In these cases, it is enough to transfer said request to a person from the same work, teaching, or service provision environment, and this regardless of whether it is attended to. In this way, the term request must be understood as requiring, collecting, or asking, while the term favor must be understood as providing any act with sexual content.

Thus, typical behavior consists of a direct and unequivocal request to the victim for behaviors whose administration corresponds to him in his sexual autonomy. This request does not necessarily have to be verbalized, it is sufficient that it be externalized in such a way that it can be understood by the recipient. And, for the requesting attitude to be typical, it is enough that the addressee is rejected, so that the crime is consummated from its formulation, in any way, that is, if the indicated effect follows, but without it being necessary. you reach your goals. Furthermore, if we do, we could lead to other criminal responsibilities.

The legislator does not require as an essential element that the requested sexual favor be obtained, since otherwise, we would be facing another possible sex crime. But it did contemplate the need for the request to place the taxpayer in an objectively humiliating, hostile, or serious intimidation situation. In this way, we understand that it is not a mere trend crime, but rather a result of crime, even if it is indirect.

Part of the doctrine understands that it is not a crime of result, but one of mere activity, so this element is an objective condition of punishments. Therefore, for this part of the doctrine, the crime is consummated with the performance of the behavior described without the agent seeking that situation of hostility or humiliation, although it must concur to be criminally punished. In any case, the lack of this requirement could give rise to other criminal figures such as conditional threats, the crime against the rights of workers, or a crime against moral integrity.

As for the environment where the action must be carried out, it is necessary that there be a relationship between the active and the passive subjects, and this must be in the workplace, teaching, or service provision. This relationship must be habitual or continuous, discarding that of a temporary or sporadic nature, and even that of a family type or any other that is not described in the type.

The European Commission, in its recommendation of November 27, 1991, regarding the protection of the dignity of women and men at work, includes a code of conduct on measures to combat sexual harassment, and among them, Mention the one that may constitute a crime. It also contains a definition of sexual harassment as the conduct of a sexual nature or other behavior based on sex that affects the dignity of women and men at work, and which may include unwanted physical, verbal, or non-verbal behavior. Further,

To all these elements it will be necessary to add the subjective element of fraud, as it is not possible for this conduct to be carried out recklessly, so that said fraud must cover all the components that are outlined and especially the conscious use of their superiority situation. What is allowed is the modality of eventual fraud, acting with knowledge of both the behavior carried out and the situation in which the victim is placed, even if it is not expressly sought.

The Supreme Court ruling STS 1460/2003, of November 7, lists the elements that must be present in order for us to be faced with sexual harassment behavior, which is very similar to the requirements. These are:

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1. The typical action is constituted by the request for sexual favors.
2. Such favors must be requested both for the criminal agent himself and for a third party.
3. The area in which such favors are requested must be within an ongoing or regular employment, teaching, or service provision relationship.
4. Such behavior must cause the victim an objective and seriously intimidating, hostile, or humiliating situation.
5. Between the action that the agent deploys and the result required by the criminal law, there must be an adequate causal link.
6. The author must act with fraud, the law not allowing reckless forms in his commission.

Aggravated types

Section two of article 184 regulates a qualified type of sexual harassment known as genuine harassment. To be of this qualified type, two requirements must be met:

• That there is a request for favors of a sexual nature.
• That a relationship of superiority exists between the perpetrator and the victim, as in the case of labor, teaching, or service-provision relationship, and that the perpetrator takes advantage of it, expressly or tacitly threatening to cause harm to future expectations of the victim in his relationship with her.

That is to say, there must be evaluation and specific intimidation, the evil must have a connection with the bond that exists between the two people. The damage may be indirect, while it may be express or tacit. It can include the offering of goods in exchange for a sexual favor. You do not need to create a humiliating, hostile, and humiliating situation.

If the harasser by means of revaluation manages to carry out the sexual act, he will be punished for a crime of sexual abuse of revaluation. The sentence for this qualified type consists of a prison term of five to seven months or a fine of ten to fourteen months.

On the other hand, section 3 is responsible for regulating an aggravated rate, which is foreseen for cases in which the victim is especially vulnerable, due to their age, illness, or situation.

In these cases, it is necessary for the victim not only to be vulnerable but to be so in such a special way that it makes the consummation of the crime much easier. The aggressor takes advantage of this circumstance to carry out sexual harassment, so one must be aware that this vulnerability exists.

In these cases, a higher penalty is imposed because the degree of guilt of the perpetrator is much higher than in the rest of the cases, which justifies a greater criminal reproach, providing a prison sentence of five to seven months, or a fine of 10 to 14 months in the cases of article 184.1 of the CP ., And imprisonment from six months to one year in the case of the prevalence of article 184.2 of the CP.

With regard to contests, with regard to the crime of sexual harassment, it is necessary to refer preferably to the specialty rule, contained in 8.1 CP. When sexual harassment is valued in the announcement of causing an evil related to legitimate expectations of the taxpayer, we find that in Art. 171 CP threats to cause an evil that does not constitute a crime are punished more severely when the threat is conditional. By virtue of the specialty rule of 8.1 CP., It seems that the penalty of Art. 184 CP. Must be applied, with the paradoxical result of favoring the guilty.

If after the harassment the victim proceeds to have intercourse with the harasser, such an act may constitute a crime of qualified pre valuation sexual abuse. Only abuse should be punished, in relation to which the preceding harassment would be the manifestation of the prevalence of a situation of superiority, which would amount to an attempt at sexual abuse, assuming that the figure of sexual harassment did not exist.

In relation to the crimes contemplated in articles 443 and 444 of the CP ., These have their field of action decanted to the condition of the active subject, who must be a public official, and therefore the relationship that binds him and the sexually requested, as long as the relationship is hierarchical superiority that both people have within the public body or agencies where they work.