The amendment to the Penal Code is approved and the catalog of crimes that can be committed by legal entities is expanded

Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom, amends the Penal Code in relation to crimes against moral integrity and sexual harassment for which legal persons could be criminally liable

Organic Law 10/2022 10/2022, of September 6, on the comprehensive guarantee of sexual freedom, which introduces a reform of the Criminal Code by expanding the catalog of crimes for which legal entities may be criminally liable, has recently been published in the Official State Gazette (BOE).

What is the purpose of the reform?

 

The purpose of the aforementioned reform is the guarantee and comprehensive protection of the right to sexual freedom and the eradication of all sexual violence. One of the most significant measures of the aforementioned law has been the reform of articles 173 and 184 of the Criminal Code, referring to crimes against moral integrity and sexual harassment in the sense of making legal entities responsible for the commission of such crimes. Thus, Article 173.1 (torture and other crimes against moral integrity) of the Penal Code is as follows:

1. “Whoever inflicts degrading treatment on another person , seriously undermining his moral integrity, will be punished with imprisonment from six months to two years.

The same penalty shall be imposed on those who, within the scope of any employment or civil service relationship and taking advantage of their relationship of superiority, repeatedly carry out hostile or humiliating acts against another person which, without constituting degrading treatment, involve serious harassment of the victim.

The same penalty shall also be imposed on those who repeatedly carry out hostile or humiliating acts which, without constituting degrading treatment, are intended to prevent the legitimate enjoyment of the dwelling.

When, in accordance with the provisions of Article 31 bis, a legal person is responsible for the offenses included in the three preceding paragraphs, a fine of six months to two years will be imposed. Having regard to the rules set forth in Article 66 bis, the Judges and Courts may also impose the penalties set forth in letters b) to g) of paragraph 7 of Article 33.”

What does the Penal Code establish?

 

Article 184 of the Penal Code, referring to sexual harassment, establishes the following:

1. “Whoever requests favors of a sexual nature, for himself or for a third party, within the scope of an employment, teaching, service provision or analogous, continuous or habitual relationship, and with such behavior causes the victim an objective and seriously intimidating, hostile or humiliating situation, shall be punished, as a perpetrator of sexual harassment, with a prison sentence of six to twelve months or a fine of ten to fifteen months and special disqualification from the exercise of the profession, trade or activity for twelve to fifteen months.
2. If the person guilty of sexual harassment had committed the act taking advantage of a situation of superiority in the work, teaching or hierarchical position, or over a person subject to his guardianship or custody, or with the express or tacit announcement of causing the victim a harm related to the legitimate expectations that the victim may have in the scope of the indicated relationship, the penalty will be imprisonment of one to two years and special disqualification for the exercise of the profession, trade or activity of eighteen to twenty-four months.
3. Likewise, if the perpetrator of sexual harassment has committed it in centers for the protection or reform of minors, internment centers for foreigners, or any other detention, custody or shelter center, even for temporary stay, the penalty shall be imprisonment of one to two years and special disqualification for the exercise of the profession, trade or activity of eighteen to twenty-four months, without prejudice to the provisions of article 443.2.
4. When the victim is in a situation of special vulnerability due to age, illness or disability, the penalty shall be imposed in its upper half.
5. When, in accordance with the provisions of article 31 bis, a legal person is responsible for this crime, it shall be sentenced to a fine of six months to two years. In accordance with the rules set forth in article 66 bis, the judges and courts may also impose the penalties set forth in letters b) to g) of paragraph 7 of article 33.”

Finally, the wording of article 197 of the Criminal Code, relating to the crimes of discovery and disclosure of secrets, is modified. This type of crime, which, although it was already in the catalog of those that could generate the criminal liability of the legal person, is reformed by expanding the punishable conducts.

When does this reform come into force?

 

The reform of the aforementioned articles, which will enter into force on October 7, 2022, together with the obligation of certain companies to implement a whistleblowing channel by virtue of the transposition of the Whistleblowing Directive, has a fundamental impact on companies and organizations within theircompliance programs. In this regard, at AddVANTE we have extensive experience in the implementation and development of compliance programs in different organizations that provide mitigating or even exempting effectiveness of corporate liability. In view of the reform of the aforementioned articles, AddVANTE recommends to all those companies that have a regulatory compliance program to review them for the purpose of:

• Update the risk map implemented, as well as the level of the risk of infringement of the indicated offenses.
• Redefine the action plan to address the risks of committing such offenses.
• Strengthen the whistle-blowing channel.
• Establish internal protocols related to discriminatory treatment and sexual harassment.
• Conduct employee training related to sexual harassment and the undermining of moral integrity within the professional environment.