Sexual assault: why the sexual nature of the contact must be proved

The facts and the decision of the High Court of Justice of Navarre

According to official information from the Spanish Judicial Council, the events took place on 25 January 2025 in a supermarket in Pamplona. The prosecution alleged that a 72-year-old man had touched the buttock area of a three-and-a-half-year-old girl over her clothing. The Provincial Court of Navarre sentenced him to four years and one day in prison for a sexual offence against a child under sixteen.

The Civil and Criminal Chamber of the High Court of Justice of Navarre overturned that conviction and entered an acquittal. The majority did not consider it proved, to the degree of certainty required in criminal proceedings, that the contact had a sexual meaning. It regarded as plausible the explanation that the gesture was intended to move the girl aside while she stood in a passageway and the accused was pushing a shopping trolley.

The official notice states that the mother did not witness the contact and that the Chamber assessed both the child's statement and the context in which the incident occurred. The decision is not final: it may be appealed to the Supreme Court. One of the three judges issued a dissenting opinion and supported upholding the conviction, considering that the mother's evidence corroborated the girl's account.

The acquittal does not state that the child invented what happened or that a false complaint was made. It resolves a different question: whether the evidence made it possible to find, beyond reasonable doubt, that the proven contact was an act of a sexual nature attributable to the accused.

The sexual nature is an element that must be proved

Article 181(1) of the Spanish Criminal Code punishes sexual acts involving a person under sixteen. Where a touching is disputed, the court must assess not only whether physical contact occurred, but also its meaning in light of the area of the body, the way it was carried out, its duration, the context, any words spoken and the other circumstances proved.

There is no rule that automatically turns every contact with an intimate area into an offence, but neither a confession nor biological evidence is indispensable. The sexual nature may be rationally inferred from the evidence as a whole. What matters is that the judgment explains that inference and that no reasonable alternative consistent with innocence remains.

The presumption of innocence under Article 24(2) of the Spanish Constitution requires the prosecution to prove every element of the offence. If, after the admissible evidence has been assessed, reasonable doubt remains about the intention or the objective meaning of the gesture, an acquittal must follow. That standard protects against uncertain convictions without denying the need to listen to and protect a person who reports possible abuse.

Child evidence, corroboration and the dissenting opinion

A victim's statement may be sufficient evidence for a conviction, including where there are no eyewitnesses. Its assessment does not depend on a mathematical formula: the way the account was obtained, its substantial consistency, its coherence and any surrounding evidence that may support or weaken it are examined. With very young children, suggestive questions and unnecessary repetition must also be avoided.

The Spanish Criminal Procedure Act provides that, in sexual-offence cases where the victim is under fourteen, the statement may be taken as pre-recorded evidence with the involvement of specialists and safeguards for adversarial examination. The recording may later be played at trial to reduce further interviews and secondary victimisation.

The dissenting opinion shows that the same evidence may receive a different legal assessment. The majority found a plausible alternative explanation; the dissenting judge gave the mother's evidence greater corroborative weight. Unless and until the Supreme Court rules on any appeal, the majority decision must be clearly distinguished from the view expressed in the dissent.

Practical consequences for a complaint or a defence

Where possible abuse of a child is suspected, the matter should be reported promptly to the police, Guardia Civil, prosecution service or court, and the child's spontaneous words should be noted without subjecting the child to questioning by family members. It is also useful to identify witnesses, request rapid preservation of CCTV footage and retain any related communications. Shop recordings are often overwritten after a short time.

Protecting the child requires listening without pressure, avoiding confrontations with the person identified and allowing trained professionals to conduct the interview. Speed matters, but it does not justify filling gaps, suggesting answers or disclosing information that could identify the victim.

From the defence perspective, it is essential to reconstruct the location, movements and full context, rather than only the isolated moment. CCTV, witnesses, receipts, timings and any objective information that may confirm or rule out an alternative explanation should be identified. The right to remain silent does not prevent the immediate preservation of evidence that might disappear.

The Navarre decision underlines two compatible ideas: the system must investigate reports of abuse sensitively and, at the same time, may convict only when the sexual nature of the act and the accused's responsibility are proved to the standard required in criminal proceedings.

Criminal-law advice in Tenerife

If you need to report a possible sexual offence or have received a summons as a suspect, the firm can examine the statement, supporting evidence, available recordings and procedural strategy from the earliest investigative steps, with particular care where children are involved.

You can request a consultation with Abogado Juan in Santa Cruz de Tenerife, by phone or video call. Every matter depends on its facts and evidence; this content is informational, does not replace individual legal advice and does not predict the outcome of any proceedings.