Bill 107.

Summary.

The bill recognizes every minor’s right to a life free from violence and to protection of their sexual integrity and sexual inviolability. It defines an abuse of advantage or position as exploiting superiority, trust, prestige or authority, and distinguishes minors’ sexual inviolability and integrity from the sexual freedom of adults. It amends the Criminal Code (Código Penal) to exclude community service, suspension of a sentence, substitution of short custodial sentences and home detention when the conviction concerns offenses against the sexual integrity or inviolability of a minor or person with a disability. The amended provisions retain their general conditions for other eligible cases.

The bill replaces Title III of the Criminal Code and organizes it into offenses against sexual freedom, offenses against minors’ sexual integrity and inviolability, and common provisions. The first chapter addresses rape involving violence or intimidation, specified sexual acts without consent, and aggravating circumstances involving injury, pregnancy, the offender’s relationship to the victim, joint participation, degrading means or disease transmission. It also penalizes sexual acts involving people unable to consent or resist, lewd acts, sexual harassment within various relationships, sexual exploitation for profit and sexual servitude. Circumstances involving disability, vulnerability, abuse of authority or trust, and a caregiving relationship affect the penalties; some provisions also provide for loss of guardianship or custody and disqualification from functions connected with the victim’s care.

For minors, the new chapter establishes penalties for sexual penetration involving violence or intimidation and for the other sexual acts described in the provision. Aggravating factors concern age, disability, the means used, the relationship with the offender, pregnancy and sexually transmitted disease. It penalizes sexual access obtained through an abuse of advantage or position with a person older than fourteen and younger than eighteen, even where consent is given. It provides enhanced penalties for circumstances involving care, transportation, education, sports or artistic activities, among others. It further regulates lewd acts, corruption through participation in or exposure to sexual conduct, sexual harassment in employment, school and other relationships, sexual exploitation, and sexual servitude involving minors.

The same chapter penalizes the production, offering and distribution of pornographic material depicting or virtually representing minors, as well as possession for personal use of voluntarily acquired material. It covers payment or a promise of payment for sexual acts, minors’ participation in obscene exhibitionism or pornography, and promotion of sexual acts through email, information networks, mobile devices or other means. It includes showing pornography to minors or people unable to resist, organizing or facilitating sex tourism involving recruitment for exploitation, and using premises for offenses in the chapter. The common provisions increase the penalty under Articles 174 and 175 when the conduct results from domestic violence. They also penalize failure to report offenses under Title III, with different penalties according to the victim’s condition and circumstances.

In the Criminal Procedure Code (Código Procesal Penal), the bill requires protection of minors’ identity and privacy and confidentiality in proceedings involving them. It directs the Judicial Office (Oficina Judicial) to give scheduling priority to hearings in specified cases involving minor victims, while observing due process. It grants minor victims free assistance from a child defender throughout the proceedings, including enforcement, and private hearings. It revises the offenses requiring a complaint by the injured party, permits a person aware of the facts to report them when the victim is a minor or lacks capacity in the stated circumstances, and allows the child defender to request civil compensation. Agreements between the Public Prosecutor’s Office (Ministerio Público) and the accused must record the victim’s or legal representative’s views, or document unsuccessful efforts to contact them; false information or material omissions may lead to revocation. The bill adds testimony from victims of sexual integrity and inviolability offenses to the grounds for taking evidence in advance before a Guarantees Judge (Juez de Garantías). It also provides protective measures, including removal of the alleged aggressor, restrictions on proximity and weapons, relocation, police protection and assistance from the child and adolescent police.

Finally, the bill amends Law 69 of December 27, 2007 (Ley 69 de 27 de diciembre de 2007) concerning the free personal criminal record certificate issued by the Judicial Investigation Directorate (Dirección de Investigación Judicial). It limits information included for employment purposes and refers sexual offenses to Law 244 of October 13, 2021 (Ley 244 de 13 de octubre de 2021). The reform clause also names Article 79 of the Criminal Procedure Code. The bill would take effect on the day following promulgation. Its provisions concern the Public Prosecutor’s Office, Guarantees Judge, Judicial Office, Judicial Investigation Directorate, Public Registry (Registro Público) and Agrarian Reform Office (Oficina de Reforma Agraria); they may affect families, educational and health institutions, transport operators, employers, establishments, and sectors connected with digital services and tourism.