Problemas en la concepción del consentimiento dentro del tipo penal de violación en Ecuador´: delimitaciones necesarias para su tratamiento en vía judicial y legislativa.

Abstract

The present study has been developed to address the problems in the conception of consent within the criminal type of violation in Ecuador, with a literary review that allows to know the delimitations necessary for its treatment in the judicial and legislative way. The objective was to analyze the criminal type of the crime of rape, placing as a central element the fault, the overreach of the victim's consent or its ineffectiveness, to grant greater protection over the considerations that are not carried out within the type, of acts that nullify or vitiate their consent and therefore represent a limitation to integral sexual development. Based on the consent analysis, it is recommended to include within the criminal legislation, the violation of the duty to respect the opportunity to express consent, as constituting proof of the victim's absence of consent. The review of the literature defined the legal nature of the consent and of the protected legal good exposing the motivation and promotion of the conception of the consent within the criminal type, determined that the analysis of the consent within the criminal type must follow the achievement of expansion of guidelines regarding to the evaluation of effective consent and protection regarding the vulnerability of people. It was concluded in defining the need to implement equitable penalties regarding the damage of the violated legal good, in order to obtain adequate convictions in pursuit of the protection of fundamental rights.