LA TIPIFICACIÓN DE LOS DELITOS SEXUALES: VIOLACIÓN Y EL ERROR DE PROHIBICIÓN EN LAS COMUNIDADES SHUAR DE LA AMAZONÍA ECUATORIANA

Abstract

The crime of rape constitutes one of the most serious criminal offenses established in the Comprehensive Organic Criminal Code, as it directly violates sexual integrity, human dignity, and individual self-determination—legal interests that are protected under both the Constitution of the Republic of Ecuador and international human rights instruments. However, within contexts of legal pluralism and the constitutional recognition of indigenous jurisdiction, legal tensions may arise when the invocation of the prohibition error is raised as a ground for excluding criminal culpability. This research, developed from a qualitative and dogmatic-legal approach, analyzes the limits that the constitutional order and Ecuadorian criminal law impose on the invocation of the prohibition error in the crime of rape, based on a systematic examination of the Constitution of the Republic of Ecuador, the Comprehensive Organic Criminal Code—with particular emphasis on Article 35.1—and the relevant jurisprudence of the Constitutional Court of Ecuador. The study examines the legal structure of the crime of rape and the normative configuration of the prohibition error as an element of the dogmatic category of culpability, in relation to the constitutional guarantee-based model, the recognition of legal pluralism and indigenous jurisdiction, and the limits derived from the protection of fundamental rights, particularly in matters of sexual crimes. Finally, the research focuses on a specific analysis of indigenous jurisdiction, proposing legal criteria to address the invocation of the prohibition error in cases of rape, aimed at harmonizing respect for cultural diversity with the State’s obligation to guarantee effective, non-discriminatory, and constitutionally adequate protection of fundamental rights.