To determine its legal classification, it is necessary to examine its sexual nature, the absence of consent and the circumstances in which it occurred.
This issue raises questions because certain gestures can also occur in family relationships, greetings or displays of affection. The legal analysis requires establishing precisely what happened: simply describing the incident as a joke, a greeting or a stolen kiss is not enough.
When contact has a sexual nature
The part of the body involved is relevant, but it does not by itself explain every case. Touching someone's genitals has a different significance from taking someone's hand. In conduct such as kissing or caressing, the context may be decisive in determining its sexual nature.
The manner of the contact, the expressions accompanying it, the relationship between the people involved and the sequence of events are all relevant. Deliberate contact must also be distinguished from accidental contact. The discomfort caused by certain conduct deserves consideration, but its criminal classification requires establishing the elements of the offence.
For example, Spanish Supreme Court Judgment STS 625/2024, of 19 June, upheld a conviction concerning a kiss by a police officer to a woman in custody in a context of previous insistence and rejection. The previous legislation on sexual abuse was applied due to the date on which the events occurred. This temporal circumstance must be preserved when explaining the judgment. STS 625/2024.
The case of the kiss on the hand
Spanish Supreme Court Judgment STS 193/2026, of 5 March, examined an incident at a bus stop. A man took a woman's hand and kissed it while using gestures to suggest that she accompany him and offering her money. The majority upheld the conviction for sexual assault in its attenuated form.
Two judges disagreed. They considered that the kiss on the hand lacked a sexual nature and that the conduct, together with the proposition, should be classified as harassment under Article 173.4 of the Spanish Criminal Code.
The disagreement concerned the legal classification of the conduct. The majority view prevailed in that judgment, but the dissenting opinion demonstrates the importance of reasoning about the meaning of the contact in the circumstances of the specific case. The ruling should not be interpreted as meaning that every kiss on someone's hand, in every context, constitutes sexual assault. STS 193/2026 and dissenting opinion.
Why it is not necessary to prove a lascivious intent
The expression lascivious or lustful intent refers to the purpose of obtaining sexual gratification. Case law does not require such a purpose as an additional specific intention for the offence to exist.
This means that imposing a sexual act in order to humiliate or punish someone can also violate sexual freedom. Claiming that the conduct was intended as a joke does not, by itself, exclude criminal liability.
However, it remains necessary to establish the sexual nature of the act and the required intent, namely the knowledge and will required in relation to the non-consensual conduct. Dispensing with the requirement of lascivious intent does not allow purely accidental contact to be punished. STS 193/2026 distinguishes the nature of the conduct from the offender's personal motives.
Brief touching can constitute an offence
The fact that contact lasts only a few seconds may affect its seriousness and the applicable penalty, but it does not automatically eliminate the offence. Nor is it necessary for the affected person to manage to move away, shout or show physical resistance before a sudden act has ended.
When examining a complaint involving touching, it is necessary to establish which part of the body was touched, how the contact occurred, whether it was over or under clothing and the sequence in which the events took place. If CCTV footage exists, the entire movement should be reviewed. A single image may be insufficient to distinguish a deliberate gesture from contact caused while moving among several people.
When the reduced penalty may apply
Article 178.4 allows the court, by means of a reasoned decision, to impose imprisonment in its lower half or a fine of eighteen to twenty-four months. It requires consideration of the lesser seriousness of the conduct and the personal circumstances of the offender. There are exclusions where violence, intimidation, annulment of the victim's will or circumstances under Article 180 are present. Spanish Criminal Code, Article 178.4.
This is the general regime. Sexual assaults against children under the age of sixteen are specifically regulated under Article 181.
Therefore, a brief kiss does not necessarily result in a fine. Its intensity, repetition and context must be assessed. Likewise, the absence of a criminal record does not guarantee application of this attenuated form.
Judgments concerning events that occurred before the reform may refer to the former Article 178.3 when discussing the attenuated form. Today, this provision is found in Article 178.4. Checking the date of the events avoids confusing that reduced penalty with the current provision for a higher penalty contained in Article 178.3.
What should be reviewed in a complaint involving a kiss or touching?
A useful legal assessment begins by reconstructing the contact, examining how it can be proven and determining which circumstances support its sexual nature. Consent must then be analysed and, where appropriate, the specific legal classification and applicable penalty must be considered.
These are separate issues. Disputing the sexual nature of the conduct does not amount to saying that the contact was appropriate. Likewise, recognising that an act had a sexual nature does not, by itself, establish whether it was consensual or who carried it out.
Frequently asked questions about kissing and touching
Are all kisses without permission sexual assault?
The legal classification requires an analysis of the sexual nature of the act and its context. It cannot be determined solely by describing the act as a kiss or by the intention subsequently claimed by the person who gave it.
If it was a joke, does that mean there was no offence?
Not necessarily. The act, consent and intent must be examined. An alleged humorous motive does not replace that analysis.
Can a different legal classification be requested?
Yes, where the facts and evidence allow it. The defence may dispute the legal classification and, alternatively, the applicable penalty, although this does not guarantee that the court will accept those arguments.
Legal advice regarding a complaint for non-consensual touching
If you have received a summons concerning these events, seek legal advice with the available documentation. The brief duration of the contact does not make it possible to predict the outcome: the case file must be reviewed and the evidence assessed.
If you have received a summons or are involved in criminal proceedings concerning non-consensual kissing or touching in Spain, contact Brandi Abogados. Our criminal defence lawyers can confidentially analyse the proceedings and available evidence in order to assess your situation and the appropriate legal strategy.
