La ambigüedad normativa del engaño como vicio del consentimiento en el delito de estupro.

Abstract

In this thesis, an analysis will be conducted of the crime established in Article 167 of the Código Organico Integral Penal, known as statutory rape, with emphasis on deception as a key element for its legal configuration. To this end, the historical and legal evolution of this offense within the Ecuadorian legal system will first be examined, along with its main elements and the protected legal interest, namely the sexual freedom of adolescents. The legal issue to be addressed focuses on the fact that Article 167 establishes deception as a necessary requirement for the offense to be constituted; however, it does not provide a definition or clear criteria to determine when conduct is sufficiently deceptive to affect an adolescent’s formation of consent. This lack of parameters for identifying deception creates difficulties in applying the provision and grants judges a broad margin of discretion, particularly when distinguishing legally relevant deception from conduct typical of an ordinary romantic relationship, in which consent is not necessarily vitiated. Furthermore, a comparison will be made between the Ecuadorian system’s treatment of statutory rape and deception and that of other legal systems, particularly those of Spain, Colombia, Chile, and Argentina, with the purpose of identifying different models for protecting sexual freedom and consent. Upon completion of the analysis and comparison, a reform of Article 167 will be proposed to incorporate a normative definition of deception and establish objective criteria for determining its criminal relevance, thereby ensuring the uniform application of the criminal provision and preventing subjective interpretations in the application of the offense.