The Presidency published this Wednesday, May 6 in the Central American Newspaper Government Agreement 68-2026, with which it vetoes Congressional Decree 10-2026, which contains reforms to the Penal Code and the Law against Sexual Violence, Exploitation and Human Trafficking, due to unconstitutionality.
The aforementioned decree was approved last April 14 and sent to the Executive Body on the 24th of the same month.
What was approved by the Legislature toughened the sanctions against relationships between adults and minors. The measure aimed to correct a legal vacuum and strengthen the protection of children and adolescents in the country.
The rule established that any sexual relationship between an adult and a minor would be considered rape, regardless of consent.
The decree also contemplated provisions related to prevention, care for victims and information actions. In addition, it raised the minimum age of sexual consent from 14 to 18 years, so that relationships between adults and minors would be prohibited.
In the veto, among its considerations, the Executive justifies that, after analysis, Decree 10-2026 contains provisions contrary to the Constitution, since it violates the criminal principles of taxativity and harmfulness, and does not observe the block of constitutionality in matters of comprehensive protection of children, adolescents and the family, Therefore, it should be returned to Congress with the pertinent observations.
It explains that in articles 1 and 2 of Decree 10-2026, which reform articles 173 and 173 Bis of the Penal Code, the assumption is introduced to the criminal types of rape and sexual assault: “When in the cases described in the second paragraph of this article, the active subject is a teenager and the passive subject is not under 14 years of age, and there is no physical, psychological violence or prevalence, sanctions may be imposed…”; which, according to the veto, is contrary to the constitutional text.
He argues that, by suppressing the use of violence or prevalence as an element of the criminal offense to punish behavior among adolescents, the legislator creates an ambiguous criminal offense.
Furthermore, the absence of an objective differentiating element between the active and passive subject, in the context of consensual sexual acts, would prevent the competent judge from determining with legal certainty who is the author of the crime and who is the alleged victim.
According to the Executive, the approved legal reform would generate severe difficulties in determining the conscious will to commit an illegal act on the part of the person allegedly responsible for the crime.
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