Guarantor-Backed Prosecutorial Discretion in Child-Support Enforcement: A Conditional Design Framework for the Peruvian

Abstract

Objective. This article evaluates whether, and under what conditions, the transposition of the civil-law figure of the aval (third-party guarantor) into the Peruvian principio de oportunidad for the offence of omission of family assistance (art. 149 of the Criminal Code) can secure maintenance payments and strengthen the protection of children entitled to support.

Method. A convergent mixed-methods design combined three strands: doctrinal analysis of Peruvian criminal, procedural and private law; a structured review of the international evidence on criminal-justice mechanisms for child-support enforcement, in which 210 records were retrieved, 207 screened and 36 studies retained for structured extraction across seven predefined dimensions; and semi-structured interviews with four legal practitioners of the Lima Norte judicial district. A supplementary verification stage cross-checked every substantive citation and added 24 corroborated sources.

Results. Criminal prosecution is the dominant enforcement mechanism in both legal traditions, but its effects are strongly conditioned by the debtor's capacity to pay. Where capacity is present, enforcement is associated with improved compliance; where it is absent, criminalisation increases recidivism, deepens arrears and further reduces payment capacity. No retrieved study evaluated a third-party guarantor mechanism in child-support enforcement: the proposal rests, at present, on an evidentiary void rather than on demonstrated effectiveness. Scholarship on wealth-conditioned pretrial release supplies a directly transferable warning, since mechanisms that condition a favourable procedural outcome on access to money or to a solvent third party reproduce and amplify socio-economic inequality. Comparative verification further establishes that the Colombian precedent frequently invoked in support of the proposal does not exist in the terms in which it is usually cited.

Conclusions. The aval penal is defensible only as a conditional, capacity-triaged instrument: subordinated to a mandatory means assessment, accompanied by a public guarantee fund for debtors with no access to a private guarantor, and expressly barred from operating as a precondition for avoiding custody. So configured, it may raise compliance among debtors with latent capacity and relieve prosecutorial caseload without converting indigence into imprisonment. Empirical validation remains outstanding, and the article specifies the evaluation design required to supply it.