Street Harassment vs Sexual Assault: Supreme Court Ruling

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 entry into force of the «only yes means yes» law has just received an answer: when does behavior in public spaces constitute street harassment and when does it become sexual assault? Supreme Court Judgment 193/2026, dated March 5, establishes for the first time a clear doctrine. A man who took 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 that protect different legal rights

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 rights. 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 alternative:

• House arrest for 5 to 30 days in a residence different from the victim’s
• Community service for 5 to 30 days
• Fine of 1 to 4 months

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Can I be convicted for kissing someone’s hand?

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

Criminal Court 25 of Madrid convicted him of sexual assault with mitigating circumstances. The Provincial Court of Madrid (15th Section) upheld the conviction. The defense appealed to the Supreme Court alleging that the facts fit the street harassment provision 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 mitigating 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. Context proves the sexual nature of the act. Taking 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 taken 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 more serious conduct of article 179.

6. Consent can be exp

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However, each case must be analyzed individually. The Supreme Court has also convicted a foot fetishist for touching feet, applying the same criteria. In the opinion of the undersigned attorney, not every physical contact should automatically lead to sexual assault: it is necessary to assess its specific sexual significance and the context in which it occurs. In cases like the one analyzed —hand kiss 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 report for these facts?

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

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

3. Collect evidence immediately. Security cameras, witnesses, geolocation, messages. Digital evidence is crucial.

4. Legal classification changes everything. The difference between 173.4 and 178 is the difference between a fine and 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