Sexual abuse: ¿Is physical contact a requirement?

Abstract

The study analyzed ruling “MPF-RO-01203-2019 - C.M.O. s/ sexual abuse,” handed down by the Río Negro Appeals Court in October 2021. The case addressed the sexual abuse committed by a father against his 13-year-old daughter, notable for the absence of direct physical contact and the legal debate over whether such circumstances constituted a crime. The court, composed of Judges Zimmermann, Cardella, and Custet Llambí, debated the existence of a regulatory gap in Article 119 of the Argentine Criminal Code, which does not expressly define sexual abuse. Zimmermann argued that abuse could constitute a crime without physical contact, while Custet Llambí agreed that the perpetrator's libidinous intent was sufficient to constitute a crime, emphasizing the protection of sexual integrity and the need to judge with a gender perspective. The ruling reaffirmed the importance of Laws 25,087 and 26,485, as well as international treaties such as CEDAW and the Convention on the Rights of the Child. The final ruling rejected the defense's challenge and upheld the defendant's conviction as the perpetrator of simple sexual abuse. This ruling represented a step forward in criminal and human rights matters, consolidating a paradigm shift in Argentine justice toward valuing the consent, integrity, and dignity of victims, especially girls and adolescents, within an inclusive and restorative gender perspective.