Crime of 'sexual importunacy'
Principle of legality;
Principle that penal protection must be necessary;
Legal asset that deserves penal protection;
RULING No. 105/13
20 of February of 2013
The law – specifically the Penal Code – says that “sexual importunacy” is a type of crime. The inclusion of acts that entail forcing (“constraining”) another person to be the object of a contact of a sexual nature within this legal type does not violate the principle of criminal legality and is therefore not unconstitutional. The Constitutional Court held that this crime must always entail the existence of a contact between the agent and the victim’s person, that that contact must be of a sexual nature, that it must have been brought about by constraining the victim to undergo the action in question, and that the conduct must have importuned the victim; and the act must be one that significantly affects the victim’s sexual liberty, albeit without the gravity of a serious sexual act and without the use of violence, inasmuch as the elements that constitute a serious act and the use of violence are covered by other legal types of crime.
The question was raised as to whether the fact that the norm does not specify the typical means by which victims are constrained and importuned meant that the construct it uses to represent this form of action failed to respect the principle of “typicity” or to fulfil the duty to adequately specify the facts that warrant penal intervention.
The Court said that this was not the case. The criterion for determining whether the principle of “typicity” has been breached in this respect is whether the criminalising norm allows one to know what type of behaviour is being sanctioned. It must be possible to determine that behaviour objectively, so that the judgement of exactly what it is that deserves to be punished on the penal level is clear and citizens can thus orient their conduct accordingly – i.e. in accordance with this normative judgement.
Even though legal doctrine and jurisprudence do not contain an entirely uniform interpretation of all the forms of conduct that are capable of fulfilling the conditions required to constitute the legal type in question, the set of elements that comprise the type does outline a behavioural framework that is defined enough for citizens to be able to perceive what forms of conduct are sanctioned as a crime.
Despite the use of concepts such as “constraint”, “importune” and “contact of a sexual nature”, without a specification of the concrete means employed in that contact, if one looks at the regulations that typify the content of sex crimes as a whole, it is possible to deduce the delimitation of the area the norm protects and the typical forms of behaviour it covers with enough precision for the persons at which it is directed to be able to orient their conduct.
In reaching its decision, a lower court applied a norm which the accused person had argued was unconstitutional during the proceedings. The accused appealed to the Constitutional Court, asking it to consider the constitutionality of the type of illicit act which the Penal Code (CP) provides for under the designation “sexual importunacy”. The CP lays down that: “Whosoever importunes another person by engaging before him in acts of an exhibitionist nature or constraining him to be the object of a contact of a sexual nature shall be punished by a penalty of imprisonment for up to one year or a fine of up to one hundred and twenty days, if no more serious penalty is applicable to him under other legal provisions”. The appellant to the Constitutional Court argued that this norm violates both the requirement that the law be exact and the principle of legality, and also that it criminalises situations which, albeit disagreeable, do not attain the minimum threshold needed to be considered criminal. He said that in the latter respect, the alleged unconstitutionality resulted from the fact that legal precepts of this kind confuse the need for intervention by the Criminal Law – which is always resorted to as an ultima ratio – on the one hand, with morals and accepted customs on the other.
The 1995 revision of the Penal Code amended the legal framework applicable to sex crimes. The changes were underlain by the assumption that the criminalisation of forms of conduct in the sexual domain can only be considered legitimate if, and to the extent that, they injure a specific and eminently personal legal asset, failing which one would be in the presence of a crime without a victim. Sex crimes stopped being seen as crimes against the ethical/social foundations of life in society, and came to constitute crimes against persons, and concretely against the victim’s sexual freedom and self-determination.
A new distinction was also made between crimes against sexual freedom and those against sexual self-determination. The former are crimes committed against adults or minors without their consent, with the goal of ensuring the protection of the victim’s sexual freedom. The latter are crimes in the form of consensual acts committed against minors with their “consent”, in which the object of legal protection is the free development of the minor’s personality in the sexual sphere.
The “crime of sexual importunacy” must be seen as a crime against sexual freedom. To the extent that is relevant here, this type of illicit act introduced a concept of “contact of a sexual nature”, whose purpose is to punish those who force or “constrain” others to be the object of acts of a sexual nature that are not grave enough to constitute serious sexual acts. This legal type criminalises the sexual importunacy of another person in the shape of two distinct forms of conduct: engaging before another person in acts of an exhibitionist nature; and constraining another person to be the object of contacts of a sexual nature.
In a democratic state based on the rule of law, crime prevention must be undertaken with respect for citizens’ rights, freedoms and guarantees, and is subject to limits that preclude arbitrary or excessive interventions. Rigorous application of the principle of legality means that crime prevention can only be pursued in compliance with the requirement that there can be no crime or penalty unless it results from a prior, written and exact law.
The prohibited conduct and all the concrete requisites for a punishment must be described in such a way as to make it possible to objectively determine the forms of behaviour that are forbidden and subject to sanctions, and for citizens to be able to objectively know what should motivate their conduct and how it should be directed. The principle of “typicity”, which is linked to the principle of legality, requires the law to both adequately specify the facts that constitute a given legal type of crime, and typify the penalties for it.
The appellant also argued that this particular case involved the criminalisation of forms of conduct that do not deserve to be the object of criminal punishment, and that this was in breach of the principle of minimum intervention. He said that it is generally accepted that one cannot criminalise situations that do not warrant punishment under the criminal law, given that there is not a perfect match between an act that is socially or morally unacceptable and one that should be criminally punished; and that the failure to ensure that the need for intervention by the Criminal Law is not confused with morality and accepted customs is therefore unconstitutional.
The Constitutional Court recalled that under ordinary Portuguese criminal law, any fact that is described and declared subject to penalty by the law constitutes a crime. The Constitution expressly states that the ordinary legislator is entitled to create crimes, but that restrictions on constitutionally enshrined rights and freedoms which are imposed as a result of criminal penalties are only legitimate when the objective is to protect other rights or interests to which the Constitution affords its protection – i.e. when the typified situation deserves criminal punishment.
It is also necessary for the imposition of penalties or security measures to be the only way to protect the legal assets in question – i.e. the criminal law must be the ultima ratio, and the situation must be one in which there is a need for penal protection.
An asset that deserves to be protected by the criminal law is one that reflects a constitutional-law value which is recognised as being eminently worthy of protection, while the socially damaging nature of the injurious conduct means that the latter must be qualified as socially intolerable. However, the decision whether or not to resort to penal means pertains first and foremost to the legislator, who must be acknowledged to possess a broad scope for discretion. The legislator’s freedom to shape legislation can only be limited when the criminal punishment it decides on appears to be manifestly excessive.
The penal norm addressed by the Court in the present Ruling is intended to protect sexual freedom. The legislator took the view that being constrained to be the object of a contact of a sexual nature constitutes an injury to the legal asset “sexual freedom”, the importance of which is such that it deserves penal protection. The Court held that it was in the presence of a criminal policy option adopted by the legislator, who felt that such forms of behaviour are serious enough to warrant punishment. The criminalisation of this conduct was not based on reasons linked to the field of social morals or sexual morality, but only on the need to protect personal freedom in one of the domains in which that freedom is projected.
The Court thus found that in the concrete case before it, the legal asset protected by the legal type of crime in question is unquestionably important enough to deserve penal protection. Given that the Court should only censure legislative solutions that are manifestly excessive, it concluded that the norm does not violate any constitutional norm or principle – namely those of need, appropriateness and proportionality, with which laws that restrict constitutional rights, freedoms and guarantees must comply.
Rulings nos. 25/84 (19-03-1984); 634/93 (04-11-1993); 83/95 (21-02-1995); 109/99 (10-02-1999); and 179/12 (4-04-2012).