Supreme Tribunal of Spain (Tribunal Supremo), Section II, No. 411/2006, 18 April 2006

Recourse against conviction for sexual abuse against minor. Evaluation of the error about the unlawfulness of the conduct.

Art. 181 Spanish criminal code
Art. 14 Spanish criminal code

1. The assessment of the error as to the unlawfulness of the conduct must take account of the conditions of the subject, by reference to those which an ordinary man would have, and must thus combine the subjective and objective criteria. The starting point must in any case be the nature of the offence, since the error cannot be invoked when the offence has been committed with a conduct whose unlawfulness is commonly recognised.

2. The error about the unlawfulness of the conduct shall be deemed unavoidable when the defendant could not have overcome it by employing an objective and subjectively due diligence, to be assessed according to parameters such as: the evidence of the lawfulness or unlawfulness of the conduct; the defendant’s personal circumstances and the context of his life; the possibility of overcoming the error also by accessing appropriate means of information.

3. There exists an unavoidable (and not merely avoidable) error about the unlawfulness of a sexual act with a minor when the psychological and cultural conditions of the defendant and his social context led him to consider the relationship as permissible and normal.

(The court of second and last instance thus overturned the conviction of an Ecuadorian citizen who had engaged in a sexual consensual relationship with a 12-year-old compatriot, being aware of her age.)