La confusa respuesta penal frente a los ataques contra personas enfermas o con discapacidad

Zusammenfassung

The Spanish Penal Code includes many provisions that specifically or in an aggravated form punish anyone who attacks a person with a disability or illness. However, although the legal basis for enhanced criminal protection of both groups seems to be the same, the protection offered is different, which causes great confusion and even contradictory jurisprudence. However, this is an issue that has received little attention in the legal doctrine. Considering the above, this paper first analyses the characteristics that would differentiate, in general terms, illness from disability. This is followed by an analysis of the impact of both concepts in criminal legislation, with special attention to the content of Article 25 of the Penal Code. It then examines the specific references to persons with disabilities or illnesses in Book II of the punitive text, as well as their rationale. And finally, it describes in detail how the provisions that mention both groups as victims of crime are applied by the courts. The conclusion is that the current penal regulation is incoherent because it allows two different conceptions of disability to coexist and, consequently, a lege ferenda proposal is made.