Insuficiencia normativa del tipo penal de extorsión sexual del artículo 172.1 en el COIP.

Abstract

This graduation thesis aims to analyze the criminal offense of sexual extortion, as regulated under Article 172.1 of the COIP, to determine whether its current normative configuration provides sufficient criminal protection for the constitutional rights to sexual integrity and privacy in light of new forms of commission facilitated by digital technologies. The objective is based on the need to overcome the legislative omission that afflicts the legal type, since the core verbs employed do not expressly contemplate cases where, even with apparent initial consent, photographic, video, or similar materials are subsequently used as a means of blackmail to obtain a personal benefit or for third parties. This omission forces recourse to extensive interpretations, a practice strictly prohibited by Article 13 of the COIP, which expressly forbids the use of analogy to create criminal offenses, expand the limits of the legal assumptions that allow the application of a sanction, or establish restrictions on rights. It is concluded that, as a proposal, the reform should be addressed by updating the core verbs of the legal type to include new digital forms of commission, without this implying an analogy in malam partem, but rather a normative adjustment required by the Constitution, the Belém do Pará Convention, and the Budapest Convention. In this way, to guarantee effective criminal protection.