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The continued crime in sexual crimes
On March 31, 2007, the Oral Criminal Court of Rancagua condemns L.M.V.R to the unique penalty of six years of prison in its minimum degree, as author of two crimes of sexual abuse, according to article 366 bis and article 366 ter of the Criminal Code.
The facts that support this judgment take place, as stated by the Court, between the months of August and September 2005, where the author in circumstances in which he was in fact separated from his spouse takes their daughter to their home, inwhere the two abuses occur, consisting of touching in the genitals of the child at night and later, the next day, while the child bathed in the shower.
This comment falls on the ruling of the Court of Appeals of RancaguLetter b) of article 377 of the Criminal Procedure Code in relation to article 351 of the same legal text and 366 bis of the Criminal Code, which has ultimately made an erroneous application of the right that has influenced the device of the ruling, therefore thecircumstances that give rise to the crime are not constitutive of repeated crimes, in this case, 2 different sexual abuse crimes, but of a continuous crime.
The Public Ministry, for the opposite party, requests the rejection of the appeal, arguing that there is no national jurisprudence that charges the origin of the continued crime in matters of sexual crimes.
Synthesis of the sentence
The problem and discussion that presupposes the acceptance or rejection of the criminal institution of continued crime in sexual crimes has been collected in this ruling, where the court is pronounced about two very important edges of the problem, first of all, about jurisprudential recognitionof this typification and, second, of the elements or requirements that it has, especially about the subjective link of the actor that unifies the facts and works as a connection between them.
In this regard, the Court hosts the appeal for nullity requested, declaring the concurrence of an error of law in the judgment of the oral criminal court, where the facts were constitutive of a continuous crime, rejecting the argumentation of the public ministry, admitting thatAlthough this institution is not expressly recognized in our criminal legal system, if it has had doctrinal and jurisprudential recognition, allowing this classification to be applied when its requirements have been met.
On this issue, the Court includes the arguments presented by the author’s defense lawyer and indicates the type as a “legal unit”, referring to the repetition of several facts that, due to an external-legal criterion, are considered as a unit, also assigningits elements;“A) Plurality of acts, b) Unit of legal injury and c) Connection between the actions."Likewise, the so -called" theory of alternation ", which indicates as a unifying link of the acts the use of the accused of similar factual situations.
According to this, the constitutive facts of crime would be ascribed to the hypothesis raised by the defender, constituting a continuous crime and not two repeated crimes.
The objective of this work is to critically analyze the position sustained by the Court and in the same way, try to answer the question about whether continued crime can be applied in cases of sexual crimes. Therefore, it seems relevant to review and carry out an analysis of the general panorama of this criminal legal institution, characterized by not being expressly recognized in our legal system and being its elements and definition object of current debate in the doctrine.
The continued crime.
Cury defines the crime continued as “several actions executed in diverse times, each of which, considered independently, completely performs the demands of criminal types of the same species, however, which must be treated as a whole andpunished as a single punishable fact, by virtue of the special relationship between them ”.
The existence of a certain majority consensus can be indicated when the demands or elements forming continued crime, these being generally and according to the definition indicated above, the (1) Active Subject Unit;(2) Plurality of actions or omissions;(3) Temporality;(4) realization of the same basic type, being understood as the violation of such legal precepts;(5) the connection between the actions provided by continuity;And in the specific case of sexual crimes, some authors indicate as an essential element (6) the same passive subject.
The big problem regarding the application of this institution on sexual crimes focuses precisely on the connection or subjective element of the type, that is, the element that will act as unifying or agglutinator of these facts that, if not mediating, would be treatedas repeated crimes. In this regard there has been great debate in the doctrine, formulating three most relevant currents or theories, which will be analyzed below:
As the first approach is the "theory of the necessary fractionation", which indicates that the link that unites these facts is given by the perception of the actor by estimating as a requirement for the successful commission of the crime the division of his act in independent actions, which couldhave been carried out jointly. A second position is that of the “unitary intent”, which indicates as a agglutinating element the unity of purpose or global purpose of the author of the crime, which on its own decision has previously decided the division of its actions, independent of the reasons that fed, referring toA preconceived plan. Finally, there is the "theory of alternation", which is wielded by the Court of Appeals of Rancagusimilar factuals.
It can be seen that there is a division between those theories that indicate as necessary a unified or unitary intent and those that seek a homogeneous intent. In this sense and taking into consideration the objective of continued crime, which is the reduction or reduction of excessively high penalties resulting from the real crime contest, and following the formative principles of criminal law, as is the pro reo principle, it is inconsistent to point outto the "theory of the necessary fractionation" and the "theory of unitary intent" as executable guidelines in the case of sexual crimes, this because both indicate as necessary a previous plan by the author, which according to ourCriminal Code, would constitute an aggravating crime against people and not a denial.
Applicability of continued crime in sexual crimes
As the sexual crimes of infractions that violate personal legal assets, such as the sexual indemnity, freedom and integrity of a person, doctrine and jurisprudence have been divided with respect to the acceptance of the applicability of the crime continued in them, finding the rejection, being the rejection, being the rejection of themAbsolute of its admissibility, its limited origin subject to the existence of the requirement of the same passive subject and its exceptional admission when repetition does not considerably increase the affectation of the protected legal good.
The first is graphic in the legal regulations of Colombia, which prohibits it absolutely according to constitutional protection mandates, being only applicable to crimes that do not impair or injure the dignity of the human person, becoming a requirement as a requirement, becoming a requirementIn addition to those mentioned above, "do not violate highly personal legal assets". Likewise, it is argued that by a criminal political perspective, the application of continued crime in these cases is inadmissible, since these were designed as a benefit and that certain crimes evaluated as serious cannot be subject to this.
It is supported by those who support this position an incompatibility between sexual crimes and the fractionation of acting, in the sense that at the time the attack on sexual indemnity is carried out, a series of unique consequences of that injury are configured.
In accordance with the above, we can conclude with relative ease that according to the facts that the Court gave as established if the application of continued crime is appropriate, this due to the fulfillment of all the requirements established by the doctrine and jurisprudence as essential,Follow up even to theories regarding the subjective link of the actor as an agglutinating element and its applicability. With regard to Active Subject Unit, plurality of temporarily spaced shares and omissions, this is established in the second recital of the ruling where the court identifies a perpetrator, identified as L.M.V.A, referring to touching with his hands in the child’s vagina while he was in bed, and on a second occasion, while the victim bathed naked in the shower, elapsed during the month of August and September 2005. Likewise, in the fifth, it is specified that among these actions not medium more than 12 hours between one and the other, confirmed by the victim’s own story. As for the varied actions to violate similar legal precepts, this requirement also concurs, since both actions are in the criminal type of sexual abuse of article 366 bis in relation to article 366 ter of the Criminal Code, threatening the same legal goodProtected, this is the sexual indemnity of the child.
The identity of the same passive subject is also fulfilled, since it is the same victim of both sexual aggressions, identified in the second recital as the child under 6 years, identified with the initials to.N.V.D. Finally, the subjective element also concurs, being able to be assigned to homogeneity of the subject’s intent, specifically to the so -called "theory of alternation", where the subject succumbs several times to the commission of the crime due to such motivating factual circumstances of this motivating. This can be seen in the same rul.M.V.R was in fact separated from his spouse to.M.F.V, led their daughter, the initial victim to. N. V. D., 6 years old to date, at your home at that time … ”, thus establishing the situation in which the illicit ones were given, that is, being alone with the child, without supervision of the motherthis.
In this regard, we can point out that although the continuous crime can be applied theoretically and conceptually to sexual crimes when all the requirements and elements indicated as essential by doctrine and jurisprudence are met, there are some considerations that it is important to take into accountIn relation to its application. In the first place, the objective by which the continued crime was created is the reduction of the penalty in those cases where the legal interpretation of the real crime contest was excessive penalties before a rational perspective, functioning as a limit to the facultyo State punitive action, understanding in accordance with the guiding principles of criminal law, however, over time and as can be seen in this specific case, this institution began to be used to jointly penalize those actions that were difficult to verify orActing separately during the trial. This is clearly graphically graphPart of the sentencers, to specify in a clear and categorically, the occasion on which each of the sexual connotation episodes occurred that are established, being extremely vague to reach the conviction that in a certain time, in which they areThey would have produced, two diverse and independent crimes have been verified with each other, with their own circumstances absolutely disconnected from each other.”The application of this figure is incongruous in these circumstances taking into consideration constitutional guarantees such as due process, even more when the verification of these facts falls into the accusing body, which in criminal matters is the competence of the public ministry, the State of the State.
On the other hand, it is relevant to point out that we asscribe to the argument wielded by those who sustains the inadmissibility of continued crime in sexual crimes, regarding the incompatible nature between them, taking into consideration rather than legal, but also social and psychological aspects, which ifWell, they cannot be taken into consideration in a strictly legal analysis of this problem, they are relevant in the social context of a person and that must be analyzed by criminal policy.
In conclusion, we advocate the inapplicability of continued crime in sexual crimes, or in its application exceptionally in cases where the number of times, temporality or frequency, commission dates, among others;This is not enough to sustain any of the theories of the unifying subjective element of the facts, because the commission of this type of crimes is always aimed at achieving a specific purpose, the sexual gratification obtained from the abuse itself, andthat is irreparable the protected legal good.