Spain

In Spanish criminal law, the victim’s consent is generally considered to be grounds for a defence against criminal liability. Although Article 20 of the Penal Code (PC) does not mention it among the general defences, legal scholars consider it a supra-legal defence, deriving from the political principles inspiring the legal system, such as the principles of freedom or personal autonomy . Article 1 of the Spanish Constitution (SC) stipulates that freedom is a supreme value in the legal system and Article 10 SC provides that dignity of the individual, inviolable rights that are inherent, and the free development of personality are the foundation of political order and social peace. 1

The importance afforded to freedom and personal autonomy means, inter alia , that it is necessary to take into account a person’s will to determine to what extent his own interests should be protected by criminal law. As a general rule, it is understood that the person’s interests should not be protected against or aside from his will. 2 We take a liberal conception as a reference, which understands that criminal law fundamentally serves to protect freedom and individual interests, unlike a statist conception, whereby criminal laws serve fundamentally to protect the interests of the state. 3 Respect for individual freedom means recognising a person’s freedom to dispose of his own legally protected interests and, therefore, the possibility of consent operating to exclude criminal liability.