DELITOS CONTRA LA LIBERTAD, INTEGRIDAD Y FORMACIÓN SEXUALES.
INTRODUCCIÓN. La ley 599/00 en su libro II Título IV Arts. 205 a 219B pretendió recoger todas las disposiciones que atentaban contra la libertad, la integridad y formaciones sexuales, cosa que nos parece de gran importancia para legal security of citizens, but, by the continuous improvisation in this area, has undergone several modifications. The 2000 legislature intended to create a single body where they meet each and every one of the punishable acts that violate human sexuality, but to date has had four major changes such as:
Act 679 of 2001.
Act 747 of 2002.
Act 1236 of 2008.
Act 1257 of 2008.
few days ago, was issued the Law 1329 of July 17, 2009 "Through which amends Title IV of Act 599 of 2000 and other provisions to counter sexual exploitation exploitation of children and adolescents ", where Article 217 is added the second with the nomen iuris of" Demand for commercial sexual exploitation of persons under 18 years of age "penalizing the one that directly or through third party, requests or demands sexual intercourse or perform sexual acts with anyone under 18 years, by payment or promise of payment in cash, kind or compensation of any kind. In a clear attempt by the legislature not only de-stimulate the child prostitution, but to protect the sexual education of our children and adolescents. With a paragraph that says "The consent of a victim under 18 years shall not constitute grounds for exemption from criminal liability.
sexuality can no longer be a taboo. It is one of the most compelling realities, to which modern man is approaching a scientific manner. We can not continue to think as the law 19 of 1890, that behavior as "pandering", "concubinage" to be criminal behavior. Yet the decree 100 of 1980 tort considered "statutory rape" because they had a clear conception of what was the legal right and should be sought to protect. Law 95 of 1936 consecrated as criminal behavior "adultery" considering that threatened people's sexuality.
not claim at any time be too liberal but that there are behaviors that do not conflict with human sexuality but violate morality or common decency.
Sexual freedom is the capacity of humans to self-determination and self-regulate their sexual life, is linked naturally to the specific purposes of human sexuality and the concept of dignity that hovers over every man.
sexual freedom we can not understand how the unlimited possibilities of disposal of the body itself, this law implies determination and natural limitations.
Sexual freedom is right and right to choose, accept, reject and self-determine their own sexual behavior, subject tothe necessary ethical concepts of community and respect the rights of others correlative.
Our system means sexual freedom as the right to self-determination, voluntary, intentional and conscious of the person to the acts and relationships inherent in their sex life.
We have understood the sexual integrity as psycho-sexual identity of a person, something that the states and identifies as being unique. The product of the sexual integrity of man formation is altered affecting the enjoyment of the psycho-sexual or emotional-sexual energy by imposing a psychological distraction, the product of a disturbing element of sexual assault.
This chapter deserves special importance because what at a given time and space can be immodest in another time or in another place may not be (the bikini, the miniskirt, the marriage of women serving 9 years , homosexuality, etc.).
previously spoke of crimes against sexual assault, meaning modesty modesty, modesty, honesty, and that is a virtue that can not be such a prostitute or stripper, can not feel ashamed against nudity, but that does not mean they are not subject to protection against the freedom, integrity and sexual education, as previously thought, even today still some defense lawyers raised in public hearings that the victim "was not a virgin the time of the facts "or" not an honest person "or" is of dubious reputation "as if it had an impact on the value judgments that should the judge.
legally protected interest. The legislature of 2000 welcomes a new vision of the legally protected interest in these crimes, when Title IV called "Crimes against freedom, integrity and sex education, ending any kind of moral imposition, social and even religious concepts could involve as sexual assault. "
If you look carefully, with this new conception of legal right is to provide a basis for certain types of crimes as the "inducement to prostitution" (Art.213), "pornography" (Art.218) , and additional support to figures such as access and sexual acts with child under 14, whose foundation was being criticized by some sector of the doctrine.
sexual freedom has been understood as the right to dispose of her body for sex erotic purposes as well has his head, which means do or abstain from performing any practice that meets from orbit.
Sexual freedom implies the right to decide how, when and with whom, but also to form this approach, namely that the freedom to decide about their own sexuality is to be extended to the free development of sexuality , which is nothing but an integral of the fundamental right of Clause 1 of the Constitution, namely the free development of personality.
insufficient So the concept of freedom to frame some sexual behaviors, which is why the legislature of 2000 came to bring the integrity and sexual education and interest which shall be protected in this type of behavior.
With this change, the age of 14 has, on the one hand, the right to remain intact, undamaged and intact from any type of sexual activity, and secondly, the right to enjoy an environment where to evolve and train without any interference that allows it, eventually, to have sexual freedom once you have the ability to dispose of it, which means that the legal right to custody in the art. 208 and 209 of the Penal Code, is the integrity and sexual education.
intercourse. Is the penetration of the male member of a person in any other body cavity (vagina, anus or mouth). Some laws use the word intercourse, city hall, concúbito, among others.
Some authors consider that there is only rape in vulvar or vaginal intercourse and even introducing "per anum, but discussed the" fallatio in ore "as such, maintaining that the intercourse must be made in the toilet. We believe that there is intercourse, in this case, and that because oral penetration of greater psychological impact the victim by the superior disgust, whatever that therein lies the sense of taste, in good time the legislature established him as accessible. What I do not agree with is the view of some of our prosecutors who believe that oral sex if there is no access, may be, it is the victim of a sexual act of access, as explained later.
The extent of penetration attend most authors include partial access and no physiological perfection. At first we have to vestibular intercourse (penetration into the hole vulvar) and other partial insights, make up the carnal knowledge, while that at second include cases in which not reached seminal ejaculation.
The Penal Code Article 212 brings a definition of sexual intercourse as follows: For the purposes of the conduct described in previous chapters, sexual intercourse means penetration of the penis for anal, vaginal or oral and vaginal or anal penetration of any other body part (fingers, hands, feet) or other object (dildos, massagers, sticks, etc.).
VIOLENCE. Is a major means of committing crime.
in sex crimes is the force that prevents or overcomes the resistance of the victim, allowing the sexual act does not include violence that can be used as a source of excitement. It is generally classified as physical (the deployment of energy or physical force that prevents bends or yields the resistance of the victim) and moral (the serious threat of a bad future. She instills a fear of the victim that determines have no resistance to the action of the aggressor. eg when it threatens to assault, kill, kidnap, etc.)
doctrine has raised the discussion of the impossibility of rape of a woman who might ordinarily resist, by one man. It is said that the force de las piernas y la movilidad del cuerpo impedirán la realización del coito, en la forma en que es imposible envainar una espada que es empuñada por otro y puesta por él en movimiento. O, el manido ejemplo forense, de la aguja y el hilo.
Permítanme citar, a propósito de esta idea, un célebre relato de nuestra literatura universal:
“Un día llega una mujer ante el Juez trayendo un hombre tras de sí. “Juez”, grita ella, “hazme justicia; Este hombre me violó”. El juez, después de un momento de reflexión, dice al acusado: “dale tu bolsa a esta mujer”. El hombre por temor even more severe punishment, is ready to obey. "Now," says the judge the man-"Take off the bag." And despite all their efforts can not snatch the bag, the judge declared: "Women. If you had defended defended your honor and your bag, you would not have needed to appear before me. Give him back his bag. " (CERVANTES "The Ingenious Hidalgo Don Quixote de la Mancha).
causation. The violence used must determine the completion of intercourse. There are sexual acts, and in this case sexual intercourse, in which there is violence, but sexual intercourse takes place with the mutual consent of the couple, with the purpose that, not forfeiture of the will of one, but the satisfaction of the libido have a perversion of the sexual instinct, namely the combination of pain and pleasure, known as sadomasochism.
There are also cases in which violence is presented preliminary, after which the person consciously violated initially sought access. We can not recognize such violence as the cause of access, even as she tended to break the will of the other person was displaced by the consent. These are cases in practice are between acquaintances or friends, and even dating.
SUBJECTS. Some authors argue that there can be no violation of woman to woman (Tocora, op cit. p. 257) even question the possibility of an active subject hypothesis taxable woman man "on the ground that given the physiological disposition of man, could not make access without their consent, namely the erection necessary, which requires at least the desire. " We believe that those who think they are wrong. First, because the second part of Art. 212 enables it to be introduced elsewhere in the body or object, and an active individual woman can do this with a male or female taxpayer, and second, because it requires the desire and indeed, if a man is forced to sexual access to a women, this is not sexual intercourse violent but violent sexual act other than intercourse, as explained below.
VIOLENT SEX. This figure differs from the former by the scope of the sexual act, which excludes intercourse. For factual understanding the code uses the expression "sexual act of sexual intercourse." Is assumed to be less serious and therefore worth less rigged.
Art has 206. Violent sexual act. The other person that you make the sexual act intercourse by force ... therefore we can say that the difference in this offense with the previous one, lies only in the nature of sex. Moreover, the environment and causation, agree with that, which exempt us from coming back to it, limiting the study of various sexual acts of intercourse.
Intercourse generically speaking is done by man to satisfy their sexual desires, which achieved through intercourse and acts leading to it. These sexual desires arise from the sexual instinct and its content consists of the object and purpose.
various sexual acts of intercourse that can be performed on a person, make a wide scale. The authors note from kissing and lewd molestation, until the inter-femoral intercourse (between legs), passing through masturbation, the cunnilinguis, rub the penis shaft anywhere in the body, etc..
Eye. Kissing, fondling or touching a body with really mild, so that young people today call "bluyiniadas" should be analyzed carefully, because bordering affective expressions, and even other types of crime, as is "injury of made "(art. 226), as it warns the Supreme Court to conclude that:
" Making a surprise, non-violent acts on the body of a person can not give consent, crime is not sexual. " (Judgement of 12 October 2006, rad. 25 465. MP Baron Marina Pulido).
"The improper touching of the buttocks and forced a kiss not affect their freedom, integrity and sexual education." (Judgement of July 2, 2008, rad. 29 117. MP Alfredo Gómez Quintero).
Let us at once. Kissing, fondling or touching a body with really mild, and because what young people today call "bluyiniadas" will depend largely on the circumstances, regarding the subject, sexual category of the cherished, the intensity of touching, etc., reflecting if it is indeed a lewd act or just warm and loving, or possibly merely a symbolic expression of desire, without allowing it to arouse lust.
ABUSIVE SEXUAL ACTS. Is this the actual title of Chapter 2 of Title IV, which includes the offenses of carnal abuse (Art.208), sex abuse (Art.209), rape or abuse in unable to resist (Art.210 ) and sexual harassment (Art.210A).
2000, the legislature decided to repeal the carnal and the sexual act was performed through a deceptive means, ie the crimes of rape, taking build upon the cultural conditions and maturity predicable of persons under 18 years and older than 14.
As we said from the outset, the legal right to protection is the formation and sexual integrity, through which it is intended to protect the child from 14 years to have a development without any interference can alter it, since it is a person who is developing the intellectual stages, volitional and emotional rather than prevent it from exercising the right to freely dispose of his body sex erotic purposes.
in this chapter is punishable conduct of the active subject who accesses or perform any sexual act differently carnal access in person under 14 years, as the legislature considers the age of 14 is not able to dispose of his body sex erotic purposes, for which it must take into account the concepts of "sexual intercourse" and "sexual act other than" raised.
What matters in this case, besides the age of the taxpayer (under 14 years old) is that access or sexual act is not done against the will of the victim, because if it uses some kind of violence (physical or moral) will be in the orbit of violent carnal access enshrined in art.205 of the Code. It must be expensive from now, without any hesitation, sexual intercourse with the minor d e14 years does not always determine the typical framework as abusive sexual act, because if the agent's conduct is displayed with violence, the definition is given in relation to the crimes of rape, never abused.
here is what is punishable is the performance of sexual acts by abusing a position of inferiority of the victim. Not achieved the purpose of using sexual violence, but taking advantage of a lower status of the natural or accidental victim. At first, in the case of certain minority, for the latter, as the state of unconsciousness, for example.
This type of abuse can be given by a minor or an inability to resist.
ERROR IN THE APPRECIATION OF THE AGE OF THE CHILD. In connection with the taxpayer's age and sexual development that may or may not have our Supreme Court considers that the presumption of being under 14 years unable to consent from any sexual act, sexual intercourse or different, does not support evidence to the contrary, so that you can not go to the demonstration of sexual development experience or the taxpayer to hold harmless the subject to perform this activity with the child.
the High Court has said:
"This presumption, contrary to that expressed by the ad quem, is absolute, irrefutable, and not supported, therefore, evidence to the contrary. The law has determined that up to that age the child must be free of interference in sexual matters, and therefore prohibits such relations with them, within a state policy intended to preserve in the development of their sexuality, which in terms policy translates into the imperative duty of abstention all the Cassation raised with support from a Italian author, and indemnity and sexual inviolability of the child, which is based in the state of relations between generations in contemporary society " (CS J. Criminal Cassation. September 26, 2000. MP Fernando Arboleda Ripoll)
We argued that if the subject considered so invincible is allowed to have sex because despite being under 14 years was not a virgin woman, would be facing an error of prohibition set out in Section 32 No. 11 CP demonstrated the invincibility of the error.
What if the active subject of the behavior, so invincible considers that the person who maintains the ratio is greater than 14? From the theory of error, sufficiently explained in the General Criminal Law course, we can say we are faced with an error of type, constituting the grounds of lack of accountability enshrined in Section 32 of the CP N ° 10
WORSE CIRCUMSTANCES. The causes that bring this Chapter Three enshrined in Art.211, have been amended several times as Act 1236 of 2008 and Act 1257 of 2008, demonstrating once again, as our legislature improvises on sexual offenses is intended to punish more intensely active person's behavior when it takes place in competition with others, or when the responsible nature hath any position or office that will direct authority over the victim, or are effected on certain relatives, or when the victim is an elderly person or a reduced physical, sensory or mental disability or when the intention was to generate social control, fear or obedience in the community.
The first thing to say is that these aggravating factors should be given full effect to the principle of guilt, so that not only meets the events objectively, pregnancy or STDs, for example, but taking into the degree of knowledge of the perpetrator of the offense, where only liable for the aggravation if they had knowledge or if you can charge by way of intentional subjectively possible, in accordance with Art.22 CP
OF pimps. In these articles is sanctioned behaviors designed to promote or facilitate the lust of others, either inducing, constraining or promoting the sex trade when they are made to satisfy the desires of another or with the intention of profiting.
not criminalizing activities for self-satisfaction, since from any point of view could be regarded as unlawful conduct in failing to violate the rights of others. It is for this reason that prostitution is not punishable as such, ie the practice of multiple sexual partners for a profit, since in that the legally protected activity "sexual freedom" remains intact, because e sla own person that determines who and how you have sex.
Quite different is when a person is forced or constrained by another to practice prostitution or "flesh trade", a situation which clearly establishes a violation of the right to dispose of the body for erotic sex is that the person is forced or swayed by other s make lewd activity to another, a situation that leaves the slightest doubt of being reprehensible.
CONCEPT. These crimes not given a conduct of a sexual nature, but a pattern of exploitation of the sex trade or prostitution of another.
The conduct of procurement is generally the facilitation of the satisfaction of lust persons, the pimp makes mercantile. Can be done in many ways: inducing, constricting, concealing, arranging, promoting, fostering, sponsoring or tolerating such acts.
of prostitution. Determine an honest person to sexual intercourse or prostitution wing, is the provisions in Article 213 that establishes the behavior as follows:
the analysis of this offense can say that it requires three elements to be structured as: first induction, second flesh trade or prostitution and third place for profit or to satisfy the desires of another.
induction, by inducing action, action that has been understood to instigate, persuade, establish or move something. In this offense some authors (among them Luis Fernando Tocora) pose a more far-reaching meaning and is the cause or result in the flesh trade or prostitution. We share that theory with the understanding that what establishes the art. 213 is a crime of result and not a mere threat or verification is required of the purport of induction, that is, the flesh trade or prostitution. Is that it covers a good offense which the victim voluntarily agreed to divest, and if we punish the conduct of anyone who fails to convince and therefore the proposed goal is not achieved, we would be offending against the principle of harm, and only against the principle of harm, against the principle of the act.
The 1980 code was required to be "honest" while the adjective is missing in the code of 2000, because this concept includes a rather subjective assessment in the application of the rule the court or the interpreter must verify that indeed the induction not only have the required skills to persuade, but the person against whom it is directed not already in the field of prostitution or the sex trade. Is that if the board is directed to a prostitute who "improve their standard of living eg dollar copper, visit a certain place and not stand in the Parque de Bolivar, stamp cards giving their services can not be thought that his conduct is involved in this provision since it can not be induced but he has never been the realm of the armature.
Carnal Commerce and prostitution: The second element set out in art. 213 to be set up this type of crime is double and different.
By sexual intercourse we must understand the performance of sexual acts in exchange for venal advantage. The difference with prostitution give it to their episodic nature.
Prostitution is the sale of publicly performed sexual acts on a regular basis. Required is to repeat itself and the public offer for lust, or unspecified persons in their identity and number.
Prostitution may be exercised at fixed locations called bawdy house, brothels or houses of appointment. O contacts with customers on the street or through third parties to agree to the site.
There is a definition of prostitution brings in our understanding of DIGEST contains the essential elements except the usual, in a sense can be understood regarding advertising. We read in the Digest: "Women who delivered publicly (Paluma bus) for money (Pecunia agree) and not for pleasure (sine delectu)."
While the definition leaves out the man who is also susceptible to prostitution, it seems right, repeat with two explanations: Neither the prostitution or the sex trade are crimes. These behaviors certainly violate the sexual honor of those involved therein, both of who pays and who sells. On the other hand, there may be prostitution or sex trade where it is also of pleasure.
for profit or to satisfy desires of another: This element is the subjective element. I had already mentioned in the introduction of sex crimes, that the essence of pimping is the commercial exploitation of sexuality of another, the exercise of prostitution, for example, is coordinated by networks of pimps who act for money, as any establishment or commercial enterprise. If the motive is not profit, eg because it is for someone to propose alternatives to survive economically configure the offense of art. 213 for lack of subjective element.
constrained to prostitution. This behavior differs from the previous mode by violent, of course, involves a more traumatic for the victim.
says the art. 214 (As amended by Section 9 of Act 1236 of 2008): The profit that for himself or for another person or to satisfy the desires of another, compels any person to sexual intercourse or prostitution ...
According to this structure, We can say that the elements are the same as those raised above for the promotion of prostitution unless the first of these changes induced by constrict, which is a violent act which requires, imposes or forces the victim to perform prostitution or sex trade.
Examples may be removed from any Venezuelan or Mexican telenovela. The blind girl to be delivered to the wealthy elderly in the district or otherwise your poor grandmother is evicted from his ranch where he lives 50 years ago.
ENCOURAGING CHILD PROSTITUTION. The Section 217 (As amended by Section 11 of Act 1236 of 2008) embodies conduct that, the quality of the taxpayer, in our view, violates the sexual freedom, because violent people who can not speak freely, for lack of consolidation of his personality. Of course, also undermines sex education and disturbing, deformed or ill-forma which should be natural and normal sexual development of children.
conduct specified in this standard can compete (Art. 31) with other sex crimes, to the extent that the home or facility, performed the sexual acts with minors. At least it involves responsibility for abusive sexual acts and eventually rape.
behavior is sanctioned by the person providing a special partnership for the practice of sexual acts involving a minor. Special collaboration is limited to assign, lease, maintain, manage or finance house or establishment, for the occurrence of sexual acts involving a child under 18. Sites should be treated with some degree of permanence because it is not to punish the person of the place where a party that had a random sexual encounter with a minor.
Although prostitution itself is not criminalized, such penal sanctions to the person intended, leases, etc., the place for the practice of sexual acts involving minors, this behavior is extreme protection to sexual freedom, as it seeks is not easy to find places where minors into prostitution, then, if it is true, the over 14 and under 18 years old can use his body sex erotic purposes, the legislature finds that while the majority gets to take extreme protection preventing and punishing the destination site to perform acts sex involving minors.
Quite simply the child prostitution is not criminalized and whether induction or constraint to it or the practice to allocate sites for
behaviors lease or financing of properties that are intended for these sexual practices where there is no knowledge of the actual destination, you can lend itself to misunderstandings: some think this is a problem regards the guilt, we think it is a cause of atypical due to lack of subjective element (intent), and so we avoided that, via circumstantial, it could ask for a measure of preventive detention intramural.
verbal inflection used "participate", we can conclude that it is a criminal type of result it requires the effective implementation of effective sexual practices or destination of the property to them. We do not share the thesis that "however, not verified the existence of actual sexual practices or destination of the property to them" (Op. cit TOCORA.. Pg. 288) we would be an attempt.
is not necessary in the conduct, profit, or a special mood, it is true that it is more serious than any, but their absence does not stop making the fact objectionable. Encourage prostitution in all its manifestations, is a behavior that may be labeled as negative, given the abuse of a position of inferiority, which usually surrounding people assume that office, the fact is that, the fact is even more objectionable if it is to encourage child prostitution, and in that case, the legislator has decided to penalize the particular method of allocating home or establishment for the practice of it.
Finally, we created a new aggravating circumstance related to the event in which the subject asset is a member of the family of the victim, in order to highlight the ties, fraternity and solidarity that should exist between members of a family.
PORNOGRAPHY WITH JUVENILE. Article 218 of the Criminal Code offense exceptionally pornography. The uniqueness comes from that pornography is outside the Penal Code, however, such behavior, having the particularity of that part of the exploitation of minors, has been considered by the legislature as deserving of protection to the criminal level. This is protecting freedom and sex education of our children, to the extent that repression tends to hit the business with them is done by criminalizing who is producing and distributing such material.
Within the exploitation of the body for sexual purposes, child pornography is one of big business.
Contrary to what is and what is not pornographic material there are numerous discussions about the limitation of certain fundamental rights such as speech.
English Legislation considered pornography as "any object capable of promoting the sexual appetites, but the nature of behavior in our legislation is completely different because there is penalized when it is disseminated pornography among minors or the mentally ill, while in our legislation the primary object of protection is "participation" of children in pornographic material.
The truth is that to determine the concept pornography should be taken into account two aspects: firstly the libidinous character and secondly the lack of artistic, scientific or educational.
has understood the U.S. Supreme Court to indicate the main features to be included in this concept:
1 That the material taken as a whole appears dominated by a libidinous interest.
2 ° That is potently offensive because it deviates from the contemporary community standards relating to the representation of sexual matters.
3 º who is completely devoid of social value.
4 That taken as a whole lacks serious literary, artistic, scientific or political.
So the pornographic material is one that lacks artistic, educational, literary, etc. And which is called the observer to sexual arousal, without the need for their production, and which may also cause the opposite effect (rejection, stupor).
these two elements will somehow limit the interpretation of the term "pornography", yes, considering that in our legislation is in addition to that content, which displayed a minor.
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