Underage and Sexual Assault | Specialist Lawyer
Defending Minors Charged with Sexual Assault and Other Sex Crimes
A complaint against a minor accused of sexual assault demands an especially careful defense. The seriousness of the accusation, the age of the people involved and the frequent existence of messages, photographs or digital conversations make it necessary to know the facts and preserve the evidence before the minor gives a statement.
Neither the guilt of the minor reported for sexual assault nor that a previous relationship between the adolescents rules out the possible existence of a crime, should not be presumed. Each conduct must be analyzed individually and according to the specific circumstances.
What to do if your child is accused of a sex crime?
If your child is accused of sexual assault, it is best to avoid contacting the complainant to ask for explanations, discuss the facts, or try to get them to withdraw the report.
Messages, photographs, videos or social profiles should not be deleted either. Digital information can be relevant to the defense and its elimination can make it difficult to reconstruct what happened later.
Our juvenile criminal lawyers analyze the complaint, the ages, the relationship between the people involved, the communications and the other evidence before preparing the statement.
Sexual offences and criminal responsibility of minors
If the person under investigation was between 14 and 17 years old when the events occurred, his possible responsibility is processed in accordance with Organic Law 5/2000.
The conduct is classified in accordance with the Penal Code, but the legal consequences are articulated through the measures of the juvenile jurisdiction.
Sexual assault between minors and adolescents
The Penal Code considers sexual assault any act that violates the sexual freedom of another person without their consent. In a sexual assault between minors , what happened before, during and after the encounter must be reconstructed and the specific circumstances of both adolescents must be analyzed.
The existence of a romantic relationship, previous sexual contacts, or previous messages may be relevant, but it does not allow us to determine on its own what happened in the specific act reported.
Age and sexual consent
The Penal Code provides for specific protection for minors under 16 years of age. However, it provides for an exception when there is free consent and the other person is close in age and in terms of degree of development or maturity, provided that certain legally foreseen circumstances do not occur.
Therefore, in cases of sexual consent between adolescents , the exact ages, maturity, context and nature of the behavior must be analyzed.
Touching and other sexual behaviors between minors
Certain touching or other acts of sexual content may have criminal relevance depending on age, consent and circumstances. In these matters, it is essential to specify what conduct is reported and what evidence exists.
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Complaints arising after relationships between adolescents
Some complaints appear after previous relationships between teenagers, after a romantic breakup, an argument or when the facts come to the knowledge of the families. This context must be analyzed, but it does not allow conclusions to be drawn about the veracity of the complaint.
Communications before and after can provide insight into the relationship and help establish a temporal sequence. However, a complaint of sexual relations between adolescents must always be analysed in relation to the specific fact under investigation.
WhatsApp, Instagram, and other digital evidence
In many proceedings for sexual offences committed by minors, digital conversations are relevant to both the prosecution and the defence.
Pre and Post Conversations
Messages can provide information about the relationship, previous encounters, and subsequent communications. They should be studied in a comprehensive way, as an isolated capture can alter the context of the conversation.
Photos and videos
If intimate photographs or videos exist, they must not be copied, forwarded or shown unnecessarily to third parties. The presence of minors requires particular caution and may give rise to other criminal consequences depending on the content and manner in which they were obtained or disseminated.
Deleting Messages
It is not advisable to delete conversations, photographs, accounts or files when you know of the existence of a complaint. Deletion can prevent proper reconstruction of the context and make a potential source of evidence disappear.
Evidence collection and preservation
In certain cases, it may be necessary to preserve the original device, export conversations, document profiles, or evaluate expert evidence. The strategy will depend on the relevance of each element.
Sexting and dissemination of intimate images
Sexting among minors requires a particularly precise analysis. The voluntary creation or sending of an image does not necessarily equate to authorizing its subsequent dissemination.
If intimate images exist, their circulation should be avoided and who produced them, how they were obtained, who received them and what happened afterwards should be analyzed.
Statement of the minor under investigation
The first declaration can significantly condition the procedure. Before appearing, the minor investigated for sexual offences must know what facts are attributed to him, what information is available and what his rights are.
There is no single strategy. In certain cases it may be appropriate to testify; in others, exercise the right not to do so until sufficient information is available.
Juvenile Prosecutor’s Office and Sexual Crimes
When the person under investigation was between 14 and 17 years old, it is up to the Public Prosecutor’s Office to direct the investigation. During this phase, statements, police reports, digital evidence, medical reports, expert reports and other relevant elements can be incorporated.
Precautionary measures
The opening of an investigation does not mean that a precautionary measure will be automatically granted. Depending on the seriousness and circumstances, prohibitions on approach or communication, probation or precautionary detention may be requested.
How the defense is prepared
The defense begins by knowing exactly the fact denounced and ordering the information chronologically. Ages, consent where legally relevant, messages, potential witnesses, and any medical or digital elements should then be analyzed.
Our criminal lawyers coordinate this action with the particularities of the juvenile jurisdiction, avoiding both minimizing a serious accusation and anticipating conclusions before examining the evidence.
Confidentiality and protection of the privacy of minors
These procedures affect particularly sensitive aspects of the lives of adolescents and families. Information must be treated with special confidentiality and its circulation must be limited to those who need to know it in order to manage the procedure.
It is not advisable to comment on the facts in school groups, social networks or conversations with other families. The defence of a minor accused of sexual assault must protect his or her procedural position and, at the same time, preserve his or her privacy during all phases of the case.
A complaint for a sexual crime requires analyzing the facts and evidence before making procedural decisions.
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What to do if my child is accused of sexual assault?
If there is a complaint of sexual assault against a minor, it is advisable to know exactly what facts are being investigated, keep messages and other evidence and avoid contacting the complainant. Before testifying, the minor must receive legal advice and know his or her procedural situation.
Do you need a lawyer before you testify?
Yes. A minor under investigation for a sexual offence has the right to legal assistance and to have a confidential interview with his or her lawyer before giving a statement. In these types of proceedings, it is especially important to prepare for the appearance after analyzing the complaint and the available evidence.
What is the age of sexual consent?
The Penal Code provides for specific protection for minors under 16 years of age. However, there is an exception when there is free consent and the other person is close by age and by degree of development or maturity, provided that certain circumstances of violence, intimidation, superiority or vulnerability do not occur.
What happens if they are both minors?
The fact that both people are minors does not automatically mean that there is a crime or that its possible criminal relevance is ruled out. In a sexual assault between minors , the specific ages, consent, maturity and circumstances in which the events occurred must be analyzed.
Can a WhatsApp conversation be used as evidence?
Yes. Messages from WhatsApp, Instagram, or other platforms can be used as evidence to analyze the relationship between the individuals involved and previous or subsequent communications. It’s a good idea to keep conversations complete and avoid deleting or editing messages.
What happens if there are previous messages between the two?
The above messages may be relevant to understanding the context and relationship, but they do not determine by themselves what happened subsequently. Sexual consent between adolescents must be assessed with respect to the specific act under investigation.
What if intimate images were shared?
It must be analyzed who created the image, how it was obtained, who received it and if it was later disseminated to other people. When minors appear, the sending or dissemination of intimate images may have additional criminal consequences and requires a particularly careful legal assessment.
Can a minor accused of sexual assault be arrested?
Yes. Depending on the seriousness of the facts and the circumstances of the investigation, a minor accused of sexual assault may be arrested. Detention must be carried out with the specific guarantees provided for in juvenile criminal legislation.
Can internment be agreed?
Yes, in certain cases. The Juvenile Court may grant a measure of internment when the legal requirements are met and the seriousness and circumstances of the case justify it. The opening of an investigation does not mean that this measure will be automatically imposed.
Who investigates these facts?
When the possible perpetrator was between 14 and 17 years old, the investigation corresponds to the Juvenile Prosecutor’s Office. The Prosecutor’s Office is directing the necessary proceedings to clarify the facts and determine the possible criminal responsibility of the teenager.
What about the background?
A final decision in the juvenile jurisdiction may lead to the corresponding entry in the specific register of juvenile criminal responsibility. Its regime is different from that of adult criminal records and must be analysed according to the decision and the specific circumstances of the case.
Has your child been accused of sexual assault?
A complaint for a sexual crime requires analyzing the facts and evidence before making procedural decisions.
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