F.A.P.A., the defendant, was a 54-year-old unmarried Salvadoran farmer residing in La Reina, El Salvador. At the time of the allegations giving rise to the case, he was receiving treatment for epilepsy. An evening, F.A.P.A. visited his niece. F.A.P.A. and his niece, a minor, were sitting on a couch watching television when his niece’s mother left the room to attend to her other children. During that time, F.A.P.A. engaged in sexual behavior with his niece against her will by touching her genitals and kissing her in the mouth. F.A.P.A. was subsequently arrested by Salvadoran police officers for sexually harassing his niece. F.A.P.A. later confessed to these underlying facts. Section 165 of the El Salvadoran Penal Code states a person is liable for sexual harassment when that person (1) engages in sexual behavior involving phrases, touching , signs, or other unequivocal conduct of a sexual nature or content, (2) the action is undesired by the person who receives it, (3) the action does not constitute a more serious sexual offence, (4) in the case of a person of legal age, the action is repeated, and (5) the action is intentional. The court found that F.A.P.A.’s confession of intentionally touching his niece’s genitals and kissing her against her will satisfies the elements of sexual harassment. Although F.A.P.A. was being treated for epilepsy, the court found that he was capable of distinguishing right from wrong and acted consciously. The court found F.A.P.A. guilty of sexual harassment punishable by two years imprisonment. However, in lieu of the prison sentence, the court exercised its discretion under articles 77 and 79 of the Penal Code and sentenced F.A.P.A. to two years of probation with the following restrictions: (1) prohibition from leaving the country; (2) prohibition from approaching the victim or her family; (3) prohibition from ingesting intoxicating drinks; and (4) will be under probationary surveillance.
F.A.P.A., Case No. 191-09-2016