La ausencia de configuración de la antijuridicidad material, en los delitos abusivos con menores de 14 años. Una mirada constitucional y social.

Abstract

This research work aims to establish whether there are cases in which, even if the objective type of crimes of abusive sexual act with a minor under 14 years of age and abusive carnal access with a minor under 14 is met; Illegally, there is no material injury to the legally protected good, due to the tension with constitutional rights and consequently it can be concluded that there was no real injury to the legally protected good of the taxpayer of the conduct.

The Penal Code is clear in stating that, in cases of relationships or sexual acts with minors under 14 years of age, the active subject of the conduct must be punished; but it is unaware of circumstances such as: The acceptance of the minor or the minor in the sexual relationship and its not affecting the legal right. The desire to follow this relationship between the active subject and the passive subject of the conduct. The fact of wanting to form a family among the subjects of the punishable conduct, and similar circumstances, which lead to a possible tension between the legal right that the criminal law wants to protect and constitutional rights, both of the defendant and the alleged victim. This research is intended to be an aid for the Judge and for a defense, in cases in which the norm remains scarce in the solution for difficult situations, so it will study circumstances in which there are still sexual relations or sexual acts with minors under 14 years, the material unlawfulness of the conduct may be distorted, due to the absence of harm to the legally protected property and consequently not set up punishable conduct due to the lack of the unlawful element of the same.