El complejo debate sobre el principio de necesidad de la pena en delitos sexuales: una revisión de los puntos principales de la discusión

Abstract

In our country, attending to the international policy of underage children, specifically in the case of girls, understood from the point of view of the increment in penal regulations that are against the freedom, integrity and sexual development, penal benefits have been limited in sexual harassment (in the case of girls between 12 and 14 years old), that have started their sexuality with teenager and overaged people (>18 years old) , in which they conform a family, any old way that is presumed for these cases there is no consent. This quandary emerge inside a society that is constantly changing and adapting to the new conceptions of special children protection , where it is well known, there are sociocultural as well as socioeconomic aspects that push underage girls into a new way of explore and develop their sexuality before turning into a legal aged person, thus questioning if it is or not necessary impose penalties in such cases. This dilemma is address from the analysis of the need of penalty, supported in different discussions given from the point of view of the critical criminology and victimology to emphasize the relative character of law respect to the range of age, to presume the validity of consent as well as establish a policy of overage, bringing then the international, as well as national, that have shown that underage girls are starting their sexual life earlier. Here this discussion is tackle from the point of criminology and victimology, to point that from the legal point of view is not possible to obtain a general vision of the problem and instead is necessary an empirical research to find an alternative and viable solution to this problem, in which the victim is the center of discussion, thus solving the conflict from the victim instead of the one from the accusers or the state. Here is argued the fact that the juridic procedure, in the case of the criminal policy, could extend the principle of the need of the penalty, following the articles 3 and 4 from the criminal code; with main objective, get a dogmatic oriented by the criminal policy aimed to the consequences, in which it can satisfy the special prevention as well as analyze the concrete situation imposing their fundamental rights as a priority, and thus solving penal problems, with the goal that the penalty imposed could answer the need of the need of the penalty, principle of proportionality and reasonableness, and thus satisfy the general functions of prevention , fairly contribution, special prevention, social reintegration and the protection to the convicted person, evaluating the possibility of applying alternative penalties to the deprivation of liberty or the concession of substitutes, having in mind the goal of guarantee the effectiveness of the principles and the end of the penalty.