La antijuridicidad material por ausencia de lesividad en los delitos abusivos con menor de 14 años en Colombia. Una mirada constitucional y social.

Abstract

The present research work emerges from the concern to analyze the objective elements of the abusive criminal types of sexual freedom, integrity and training, and from them to identify in which cases, despite the relapse of the punishable conduct on minors under fourteen years of age, the aforementioned legal good is not injured.

To arrive at the resolution of the legal problem, the dogmatic concept of anti-juridically had to be analyzed, either as an autonomous category of the crime or as an essential element to determine in which events the legal good is injured or effectively endangered.

Likewise, we rely on various decisions issued by the Honorable Constitutional Courts, Supreme Courts of Justice, Superior Courts of the Judicial District and Judges of the Republic, within which similar cases were studied such as those that we are interested in concluding in which the concept of harmfulness was not updated and that for the same reason most of them resorted to the preclusion of the investigation, which does not prevent under the same circumstances from issuing an acquittal in favor of the active subject of the action.

Finally, and with regard to the ability of minors to freely dispose of their sexuality, we rely on sciences such as psychology and sociology to establish that it is not the same to analyze the behavior and development of a minor when constructing the legal norm that aims to protect their interests and the current adolescents who, although they hold a minority of 14 years, they cannot therefore be automatically classified as incapable from the orbit of criminal law.