Few situations in the criminal sphere carry as much urgency as detention on an accusation of sexual assault. The gravity of the charge, the social and media pressure, the protection of the victim and the severity of the penalties established in the Penal Code make the risk of pre-trial detention, in these cases, higher than for most offences. For a foreign national without ties to Spain, that risk is even greater.

This article analyses the criteria judges apply when deciding on pre-trial detention in sexual assault investigations, with particular attention to the situation of the foreign national under investigation, and explains what the defence can do from the very first moment.

The Applicable Penalties and Their Impact on Pre-Trial Detention

Organic Law 10/2022 on the comprehensive guarantee of sexual freedom introduced significant changes to the classification and penalties for sexual offences. Article 178 of the Penal Code defines sexual assault — any non-consensual sexual act — with a sentence of one to four years. Article 179, which covers penetration, raises that sentence to between four and twelve years. Where aggravating circumstances are present — violence, intimidation, abuse of superiority, a particularly vulnerable victim — the sentence may exceed twelve years.

With those penalties, the threshold of Article 503 of the Code of Criminal Procedure is comfortably exceeded. The question is not whether pre-trial detention is technically possible — it is, in all sexual assault cases — but whether the specific grounds that make it necessary in the particular case are present.

The Three Grounds Most Commonly Relied Upon

In the practice of duty courts in Barcelona and Palma de Mallorca, three grounds are most frequently invoked by the prosecution in sexual assault cases.

The first is flight risk. For the foreign suspect, this argument carries particular weight when there are no ties to Spain. The defence must counter it with solid documentation: address, employment, family, stable connections to the territory.

The second is the risk of reoffending. Article 503.1.3ªd of the LECrim authorises pre-trial detention to prevent the suspect from committing further offences. In sexual offences, this argument carries specific weight that courts apply consistently. The defence can weaken it by establishing that the circumstances that gave rise to the alleged offence — a shared living situation, a prior relationship, a specific travel context — no longer persist.

The third is the protection of the victim. Where there is a risk that the suspect may act against the victim’s interests — intimidation, pressure, unwanted contact — the judge may order pre-trial detention or, as an alternative measure, a comprehensive non-contact and restraining order.

In sexual offence cases, the defence cannot limit itself to contesting the facts. It must build an argument that simultaneously addresses flight risk, reoffending risk and victim protection — the three pillars on which the prosecution will rest its detention request.

The Presumption of Innocence Under Exceptional Social Pressure

Sexual offences are among the areas where social pressure and media coverage can distort the application of the presumption of innocence. The suspect is innocent until a final judgment declares otherwise — and that principle admits no exceptions or attenuations depending on the gravity of the charge.

The defence must assert that principle actively: challenging the strength of the evidence from the outset, ensuring that investigative steps are taken in compliance with the suspect’s procedural rights, and preventing the intensity of the allegation from substituting for legal analysis in precautionary decisions.

Frequently Asked Questions

Is pre-trial detention always ordered in sexual assault cases?

No. The law requires the specific grounds of Article 503 LECrim to be present in the individual case. The gravity of the offence is relevant but not sufficient on its own. If there is no flight risk, no reoffending risk and no need to protect the victim, the judge must consider alternative measures.

What if the incident occurred between people who knew each other?

A prior relationship may affect some grounds for pre-trial detention — particularly reoffending risk and victim protection — but does not exclude the possibility of the measure. Each case must be analysed in its specific circumstances.

Can pre-trial detention be replaced by a restraining order?

Yes. Where victim protection is the primary ground, the judge may order a non-contact and restraining order as an alternative measure. The defence must propose this alternative explicitly and with documentation establishing that the suspect is not in a position to repeat the conduct.