The answer requires distinguishing what the deception concerned and which act was actually consented to.
Spanish Supreme Court Judgment STS 603/2024, of 14 June, addressed this boundary when deciding a case involving a failure to comply with an agreement to use a condom. The ruling helps explain why an emotional lie and an alteration of the sexual contact consented to do not necessarily receive the same treatment under criminal law.
What was removed in the reform of sexual offences
Former Article 182.1 specifically addressed deception in sexual acts involving persons over sixteen and under eighteen years of age. The reform abolished that provision, but this does not mean that all sexual conduct carried out through deception has fallen outside the scope of criminal law.
It is necessary to establish whether the conduct falls within the current criminal offences and, particularly, whether the specific act was outside the scope of consent. The Spanish Public Prosecutor's Office addressed this distinction in Circular 1/2023 when analysing the removal of that provision. Circular 1/2023, Section 7.
Simply stating that deception has been removed from Article 178 can be misleading: the reform did not remove from that article a general prohibition criminalising every lie used to obtain sexual intercourse.
Lies that influence a person's decision
The majority of the Supreme Court distinguishes deception concerning the reasons for agreeing to a sexual relationship from the performance of a non-consensual sexual act. Pretending to have romantic feelings or falsely claiming certain personal qualities may decisively influence someone's choice without, for that reason alone, turning the agreed encounter into sexual assault.
This limitation of criminal liability does not constitute moral approval of lying, nor does it resolve the possible consequences of other concurrent conduct. It requires precisely identifying what the criminal offence protects and which facts have been established.
The example of Cyrano de Bergerac helps illustrate this distinction. In the balcony scene, Cyrano supplies the words while Christian receives Roxane's kiss. Applying that distinction, the false attribution of eloquence would, in principle, constitute deception concerning the qualities that motivated the choice. This is a legal interpretation of a fictional situation, not a case decided by the Supreme Court. Rostand, Act III.
When sexual contact goes beyond what was consented to
The situation changes if an act different from the one consented to is performed, someone physically impersonates the person chosen, or a sexual act is presented as an intervention of a different nature.
One hypothetical example would be pretending, in the dark, to be someone's partner in order to engage in contact that the person accepts only because they believe they are with their partner. Another would be performing a sexual act under the guise of a medical examination. Consent to a medical procedure does not authorise any action whatsoever upon the body.
These examples require an examination of the facts. The label of deception does not determine the legal classification; the content and limits of consent must be identified.
What is stealthing?
Stealthing refers to secretly removing a condom during sexual intercourse or pretending to use one when its use had been agreed upon as a condition of sexual contact. The legal issue concerns deliberately engaging in conduct outside that condition, not every incident involving a condom.
Therefore, an accidental condom breakage cannot automatically be equated with deliberate removal. The investigation must establish what was agreed, what happened and how the person under investigation acted. Deliberately continuing beyond the scope of consent requires a different analysis from the accident itself.
What did Supreme Court Judgment STS 603/2024 decide?
The judgment found that the conduct examined constituted a criminal offence. The majority applied the former offence of sexual abuse without the aggravating classification involving penetration. Five judges disagreed with that classification and supported the form involving penetration. All considered that an offence against sexual freedom had been committed.
The dissenting opinion did not propose criminalising every emotional lie either. Its discussion of the legal relevance of deception focused on essential elements of the act. It would be incorrect to portray the ruling as a division between ten judges in favour of allowing stealthing and five in favour of punishing it. STS 603/2024, legal grounds IV to VIII and dissenting opinion.
Because the events were subject to previous legislation, the penalty imposed in that case should not automatically be applied to conduct occurring today. It is necessary to review the law applicable at the relevant time and the circumstances established by the evidence.
How is an agreement to use a condom proven?
Previous conversations may establish that condom use was a condition, but statements and subsequent communications must also be examined. Having used condoms on previous occasions provides context; by itself, it does not establish all the terms of the encounter under investigation.
Biological reports may help establish the nature of the contact. They must be interpreted within their limitations: finding semen does not, by itself, explain why no barrier was used, and not finding it does not automatically rule out penetration. Evidence of the agreement, its breach and the accused's knowledge requires a combined assessment.
It is also important to preserve conversations in their entirety. Messages acknowledging what happened, explanations concerning breakage or any subsequent discussion must be read in sequence, without selecting only the information that supports one version of events.
Frequently asked questions about deception and consent
Is lying about being in love considered sexual assault?
On its own, this type of deception concerning a person's motives is insufficient under the legal approach described. The acts performed and any additional relevant circumstances must be examined.
Can removing a condom without informing the other person be a criminal offence?
Yes, when it involves knowingly acting outside consent that was conditional upon condom use. It is not enough to establish that the condom was no longer in place at the end of intercourse: what actually happened must be proven.
Did the Supreme Court acquit the defendant of stealthing?
No. STS 603/2024 found that a criminal offence had been committed. The disagreement concerned, among other matters, the applicable legal classification and the legal relevance of deception, not whether the conduct examined should go unpunished.
Legal advice on conditional consent
If a complaint concerns condom use or sexual contact obtained through deception, seek a legal assessment of the alleged agreement and the evidence. Establishing precisely which act was consented to and which conduct is attributed to the person concerned is essential for determining each party's legal position.
If you are involved in criminal proceedings in Spain concerning sexual consent, deception or stealthing, contact Brandi Abogados. Our criminal defence lawyers can confidentially examine your case, analyse the available evidence and assess the most appropriate legal strategy.
