La Crisis del Principio de Culpabilidad en la Dogmática de los Delitos Sexuales en Colombia: Una Propuesta de Reconstrucción Típica desde el Funcionalismo Normativo

Abstract

This research critically examines the criminal law framework governing offenses against sexual freedom, integrity, and development in Colombia, focusing on the crisis of the principle of culpability in the classification and prosecution of offenses committed against persons under fourteen years of age. Through a legal-dogmatic and socio-legal methodology, it demonstrates the asymmetry between the legal interest of sexual self-determination and a legislative drafting technique rooted in ontological and anatomical assumptions established by Article 212 of Law 599 of 2000, which privileges the material result over the normative content of the criminal wrong. This configuration has fostered a hermeneutic activism by the Criminal Cassation Chamber of the Supreme Court of Justice, which has relied on doctrines such as indirect co-perpetration and the guarantor position to extend criminal protection to cases of sexual assault committed through virtual environments, chemical submission, or other forms of instrumentalization not expressly contemplated by the legislature. However, this judicial response has generated increasing tension with the principle of legality and the doctrine of culpability by introducing doctrinal fictions that restrict the debate on mistake of fact and promote forms of strict liability incompatible with Article 29 of the Colombian Constitution. To overcome this problem, the study contrasts the traditional ontological paradigm with contemporary normative functionalism through a comparative analysis of the German and Swedish models, which replace the criterion of force with the absence of consent as the foundation of the criminal wrong. Finally, it proposes a comprehensive legislative reform aimed at reconstructing sexual offenses on the basis of sexual autonomy as the protected legal interest, elevating minority to an objective element of absolute normative incapacity while preserving the applicability of the mistake-of-fact defense established in Article 32(10) of the Colombian Criminal Code through the express incorporation of a negligent offense of sexual assault by gross negligence, consistent with the numerus clausus system governing Colombian criminal law.