June 17, 2021

The Supreme Court establishes that although the penetration is “slight or brief” it is considered rape


The Supreme Court has established that in a crime of rape, penetration is considered to have occurred when there is contact to access the internal vaginal area, no matter how slight, so it is not required that “total access” has occurred. “It is not required, therefore, in the criminal offense absolute penetration nor does the jurisprudence require total penetration, but in the case that it is partial there is sexual assault for rape,” they highlight.


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This pronouncement of the Supreme Court is included in a sentence, a presentation by magistrate Vicente Magro, in which he corrects a resolution of the Superior Court of Justice of Aragon that lowered the sentence for some events that occurred in the province of Zaragoza on understanding that the hearing of instance had wrongly convicted of a crime of rape because there had been no penetration.

After analyzing the specific case, the Supreme Court takes advantage of the sentence to establish doctrine regarding what is interpreted as penetration, and emphasizes that “everything that is an excess of overcoming horizontality in the female sexual area, however slight or brief it may be , supposes the existence of sexual assault for violation of article 179 of the Penal Code “.

The court asserts that it is not required that a “total and absolute access” occurs during the penetration, since the violation occurs even if the access is slight or brief. And he delves into the fact that ‘horizontality’ should be understood as the superficial area referring to mere external touch.

Thus, if that external barrier is overcome, however slight that access or contact may be, it is already a penetration. Therefore, they add, “sufficient access” is enough to understand that the woman’s sexual zone is already being broken into.

The case of Zaragoza

In this way, the Supreme Court in its resolution, dated May 27, indicates that, in the specific case of Zaragoza, the Supreme Court maintained that it had not been proven that the accused had inserted his fingers into the victim’s vagina, understanding that it was only external contact without real access to it.

He reports that the Supreme Court modified the proven fact stating that the expression “by inserting a finger into the vagina” was deleted because it understood that the entrance area to the vaginal cavity -introito- of the woman was external and that there was no produced penetration by introduction of fingers.

But the Supreme Court rapporteur warns that the Supreme Court acted “irrationally appreciating the assessment of the evidence carried out by whoever has the immediacy of the practice of the evidence, which was the court of instance, which was the one who in its sentence collects the conclusiveness regarding the introduction of the fingers into the vagina “.

And remember that this conclusion was obtained “from the victim’s own statement and from the expert report that concludes that with respect to the exploration of the genital area, there are abrasions on the introvaginal and on the inside of the labia minora.”

In line, he emphasizes that the Supreme Court, although it deleted the indicated phrase, maintained in the proven facts the one relative to the genital examination in which it was asserted that he presented these abrasions. And he agrees with the victim by admitting that when referring to the vulvar introitus, he must actually refer to the vaginal introitus – the entrance to the vaginal cavity.

This is maintained because “the proven fact reflects that the victim had abrasions in the introvaginal area”, which means that it was already in the internal part and not in the external part. “What must conclude that there was the decisive penetration of the violation of article 179 of the Penal Code,” he adds.

For all this, the Supreme Court qualifies as determining the mechanics described in the proven facts, obtained by the statement of the victim and the expert, and affirms that it is a sexual assault, according to article 179.

This article specifies that when the sexual assault consists of vaginal, anal or oral carnal access, or the introduction of bodily members or objects through one of the first two routes, the person responsible will be punished as a convicted person of rape with a prison sentence of six to twelve years.

The court understands that the introduction of fingers into the vagina is recorded and therefore the penalty finally imposed is seven years in prison for the crime of rape of 179, and not article 178, which punishes the sexual crime without carnal access or introduction of fingers in the vagina. Therefore, it annuls the three-year sentence imposed by the Supreme Court and returns to that imposed at first by the Provincial Court.

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