Furthermore, jurisprudence has rejected the requirement that a libidinous spirit be present to be considered sexual harassment. The Supreme Court ruling 428/2023 can be highlighted, which addresses this issue. “According to the first meaning of kissing in the RAE Dictionary it is “to touch or press with a movement of the lips, driven by love or desire or as a sign of friendship or reverence”, and in coherence with this we could talk about different types. of kiss , as of affection, of affection, of greeting, of friendship, but there are also those with sexual connotation and content, as is the one at hand.” Rubiales has spoken at all times of a gesture of mutual affection between two friends in a moment of effusiveness and celebration.
This ruling indicates that “in this sense, it is reiterated jurisprudence of this Chamber that the criminal offense of sexual abuse is a crime against the freedom and sexual indemnity of the passive subject, whose objective content is the performance of acts of an unequivocal Whatsapp Database sexual nature carried out by a person against another who does not consent , or who does not have the capacity to consent to the aggression, in a way that damages their privacy and sexual integrity, among whose sexual acts we must include, without a doubt, the kiss that has these connotations, to the extent that a jurisprudence that we find, among others, in STSs such as 345/2018, of July 11, 231/2015, of April 22 or 55/2012, of February 7, explains that, among the requirements of the crime of sexual abuse, there must be "an objective element of bodily contact, indecent touching or any other externalization or materialization with sexual significance", and, as we said in STS 632/2019, of December 18, in interpretation of art. 183 CP, "according to the literal tenor of the precept, a single touch, if it is non-consensual, may be sufficient for the consummation of the criminal offense," and a kiss against the will of the person receiving it may be .
It has also been stated, in certain areas, that the conduct should not be punishable since it was something minimal and fleeting. The Supreme Court ruling 621/2023 indicates that " surprise, momentary or fleeting touching does not exclude sexual abuse, but, on the contrary, must be considered criminal, precisely in the criminal category of sexual abuse, today repealed and replaced for sexual assaults, although assessing case by case, and taking into consideration the context of the specific case (SSTS 615/2018, of December 3; 38/2019, of January 30 331/2019, of June 27; 632/ 2019, of December 18; 524/2020, of October 16; 636/2020, of November 26; ; 99/2021 of February 4).