Street Harassment vs Sexual Assault: Supreme Court Limits

I’m accused of street sexual harassment: can I go to prison?

In 2024, more than 21,000 crimes against sexual freedom were recorded in Spain. And a question that courts throughout the country had been asking since the «only yes means yes» law came into force has just received an answer: when does behavior in public constitute street harassment and when does it become sexual assault? Supreme Court Judgment 193/2026, dated March 5, establishes clear doctrine for the first time. A man who grabbed the hand of a stranger at a bus stop in Alcobendas and kissed it while offering her money has been the catalyst for a ruling that affects thousands of proceedings.

Two different crimes protecting different legal interests

Street sexual harassment was introduced with Organic Law 10/2022. It is found in article 173.4, second paragraph of the Criminal Code and punishes those who address another person with expressions, behaviors or propositions of a sexual nature that create an objectively humiliating, hostile or intimidating situation for the victim.

Sexual assault is regulated in article 178 and sanctions any act that violates sexual freedom without consent.

The fundamental difference is this: article 173 protects moral integrity. Article 178 protects sexual freedom. These are different legal interests. And this distinction carries very serious procedural and criminal consequences.

The penalties: from a fine to years in prison

Street harassment is a minor offense. The penalties are alternatives:

• Permanent house arrest from 5 to 30 days at a residence different from the victim’s
• Community service from 5 to 30 days
• Fine from 1 to 4 months

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Can I be convicted for giving a kiss on the hand?

The proven facts are straightforward. On January 10, 2023, around 12:40, a man identified as Victoriano approached a woman who was waiting for the bus at 52 Avenida de España in Alcobendas. He grabbed her hand, kissed it, and through gestures proposed that she accompany him while offering her money. He did this on two occasions.

Criminal Court 25 of Madrid convicted him of sexual assault with attenuated subtype. The Provincial Court of Madrid (15th Section) upheld the conviction. The defense appealed to the Supreme Court arguing that the facts fit the street harassment of article 173.4.

The 6 criteria of the Supreme Court

The Criminal Chamber, with Vicente Magro Servet as rapporteur, dismissed the appeal and established six criteria that delimit both crimes:

1. Any touching with sexual connotation is sexual assault. The attenuated subtype of article 178.4 may apply, but the classification will never be street harassment.

2. Street harassment is limited to conduct without physical contact: expressions, gestures, behaviors. Article 173.4 was not designed to sanction touching.

3. The context proves the sexual nature of the act. Grabbing the hand and kissing it was not a greeting: the sexual component was proven by the economic proposition that accompanied the gesture.

4. No woman has the duty to tolerate having her hand grabbed and kissed without her consent when the act has sexual connotation.

5. The consent of article 178.1 is required for any sexual touching, not only for the most serious conduct of article 179.

6. Consent can be exp

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However, each case must be analyzed in concrete terms. The Supreme Court has also convicted a foot fetishist for touching feet, applying the same criterion. In the opinion of the undersigned attorney, not every physical contact should automatically lead to sexual assault: it is necessary to evaluate its specific sexual significance and the context in which it occurs. In cases like the one analyzed —kiss on the hand accompanied by a proposition— it can be argued that we are dealing with conduct that, while clearly reprehensible, fits better within the scope of «propositions of a sexual nature» of article 173.4, without fully integrating the typical elements of sexual assault.

What to do if you face a complaint for these acts?

1. Do not testify without a criminal defense attorney. Neither at the police station nor before the judge. The right to silence is your first strategic tool.

2. Do not contact the complainant. Any communication may worsen your situation.

3. Gather evidence immediately. Security cameras, witnesses, geolocation, messages. Digital evidence is decisive.

4. Legal classification changes everything. The difference between 173.4 and 178 is the difference between a fine and a criminal record for sexual assault. A specialized criminal defense attorney knows when facts can be redirected to one type or another.

STS 193/2026 itself demonstrates that the boundary between both crimes generates debate even within the Supreme Court. This means there is room for defe