Omission by Commission in the Crime of Sexual Rape; [A omissão imprópria no delito de violação sexual]

Camere Figueroa E.M.; Ochoa L.F.A. · Revista Oficial del Poder Judicial (2026) · DOI: 10.35292/ropj.v18i25.1272

Resumen

This article addresses the possibility of attributing criminal liability for omission by commission in cases of sexual rape, focusing on the guarantor position held by parents. Based on Article 13 of the Peruvian Criminal Code, it analyzes how certain omissions may be equated with active conduct when there is a legal duty to act. The paper criticizes the inadequacy of traditional explanations regarding the equivalence clause and proposes a normativist understanding centered on the guarantor’s institutional competence. It argues that the parent-child relationship imposes positive duties arising from the provision of primary socialization, obliging parents not only to refrain from causing harm but also to actively protect their children from risks such as sexual crimes. This position is grounded not merely in biology but in the performance of specific duties toward the child. The article draws on the doctrines of Jakobs and Pawlik and analyzes the Peruvian cases Cassation No. 725-2018-Junín and Cassation No. 671-2023-Cajamarca. In both cases, the Supreme Court attributed criminal liability to mothers who, despite being aware of the sexual abuse suffered by their daughters, failed to act to prevent it, thereby committing omissions of criminal relevance. The paper argues that the breach of the parental positive duty constitutes an autonomous offense based on the violation of duty and that criminal law must ensure the effective protection of minors when such protection has not been provided by those who are legally obliged to do so.

Instituciones: Universidad Nacional Mayor de San Marcos; Universidad Científica del Sur