El error de tipo y su viabilidad jurídica en el delito previsto en el artículo 171 numeral 3 del COIP.

Abstract

This study analyzes the legal admissibility of a mistake of fact regarding the victim’s age in the offence of rape under Article 171(3) of the COIP, following the express recognition introduced in 2019 under Article 28(1). Adopting a doctrinal and documentary approach, it examines criminal intent in sexual offences against minors under fourteen, the role of age as an objective element of the offence, and the irrelevance of consent as a rule protecting sexual integrity. It argues that punishment is only legitimate if it is grounded in culpability and supported by sufficient evidence, such that the mere determination of the victim’s age does not replace the analysis of the offender’s knowledge. The study reviews national case law to identify the criteria used to accept or reject a mistake as to age and contrasts them with Peruvian case law, which provides guidelines for assessing the plausibility of the defendant’s belief in light of the factual context. It concludes that an invincible (i.e., unavoidable) mistake, when duly proven, excludes intent and, given the absence of a negligent form of the offence of rape in Ecuador, its proper treatment prevents convictions lacking subjective criminal responsibility.