The Provincial Court of Santa Cruz de Tenerife has acquitted a 24-year-old youth of crime of sexual abuse with carnal access that the Public Prosecutor’s Office had been accusing him of, requesting nine years in prison for the accused, according to sources from the Canary Islands Superior Court of Justice (TSJC).
The Chamber concludes that, although it is proven that he practiced the sexual act with a young woman who until that moment was his friend, it is doubtful that he did so abusing his “slight mental retardation” as the prosecutor maintained, since this handicap, as certified by the forensics, it was almost imperceptible and did not influence the young woman’s ability to decide on her sexual freedom.
The sentence, handed down by the Second Section of the Tenerife Court, declares proven that on the afternoon of July 25, 2019, the accused and the complainant had a sexual encounter with penetration in “a small country house” owned by the complainant in the municipality of La Orotava.
He recalls that, that afternoon, several friends met at the house. “In the patio or terrace of the house,” she details, the complainant “lay down with the accused on some cardboard; between laughter and shouts from both of them, he touched her, and she told him, be still.” When they both saw that another attendee to the meeting was videotaping them, he adds, “they got under a blanket.”.
“The accused later took her by the arm to introduce her into the house, and she told him she did not want to”, asking another friend to “help” her. This friend took her by the other arm, “all this in a relaxed atmosphere between all of them, which they referred to as a vacilón”, highlights the Chamber.
Later, she continues, she entered the house and the defendant followed her, entering a small bathroom next to the living room of the house, without closing the latch, “where the sexual act was carried out, without violence or intimidation.” The events happened around seven in the afternoon and the woman reported them at nine in the evening.
The Chamber recalls that the Public Prosecutor’s Office only accused the defendant of committing a crime of sexual abuse with carnal access “obtaining the consent of the victim by abusing the mental disorder he suffered”, and recalls that, in application of the accusatory principle “the commission by violence or intimidation is thus excluded” (if no one accuses of this crime, the Court cannot apply it).
‘NO IS NO’ AND THE PRESUMPTION OF INNOCENCE
The sentence points out that the prosecutor insisted in the trial on the lack of consent, recognizing that there was no violence or intimidation, “and he accepted the thesis that seems to support a project to review the Penal Code in this matter, on the basis of the principle No is no ” [también conocida como Ley de sólo sí es sí].
Remember the court that it is proven “a clear refusal” of the woman “that it could uphold said principle, putting the process in difficulty if it were forced to have to prove that from that moment consent did mediate”, but, he emphasizes, “such an assumption would leave without content the constitutional right to the presumption of innocence, and if the Court accepted this formulation, it would be forced to issue a conviction, with the Public Prosecutor having requested nine years’ imprisonment as the main penalty “.
In the Chamber’s opinion, “what is really relevant” in the case is to determine whether the accused took advantage of the complainant’s mental retardation: “We have already said that she is affected by mild mental retardation”; establishes, “but confirm the statements of the two forensic doctors who recognized her, at the time of the events denounced she did not present psychic alterations of sufficient intensity to prevent her from opposing having sexual relations; that despite the intellectual disability she suffers, she retained sufficient psychic faculties to decide on her sexual freedom, and that she is a woman of athletic complexion “.
The doctors certified in the trial that the physical examination of the victim after his complaint It did not observe “signs of violence, defense or struggle in the wrists, hips or lower extremities, or physical injuries, or blood remains or bleeding in the genital or perigenital region”.
The woman examined also did not refer pain and, expert judgmentAt the time of the events denounced, “he did not present mental alterations of sufficient intensity to prevent him from opposing having sexual relations; despite the intellectual disability he suffers, he retains sufficient mental faculties to decide on his sexual freedom.”
The court itself indicates that it observed at the oral hearing that the whistleblower effectively presented “athletic physical characteristics that would make it difficult to use the outside towards her without serious opposition”, and highlights that “he expressed himself perfectly, fluently, with a coordinated narration of the events, without any circumstance having been observed in the limited time of its declaration that allowed to affirm the existence of a slight mental retardation, obviously detected by the medical specialists “.
“NO NOISE OR CALLS FOR HELP”
The judgment states that the only witnesses to the events, two friends of those involved who observed the sexual act – they opened the bathroom door – although they showed contradictions with what was declared during the investigation, in plenary “they stated that they had not heard noises or calls from aid, and both declared that they considered that the sexual relations were consensual “.
Regarding the complainant, the ruling warns that, although it is true that “significant contradictions” were not produced in her statements, she nevertheless reported that the accused had pulled down her pants, “while it was ostensible that the garment she was wearing was a skirt, as can be seen in the video recording provided to the performances”. In the Court’s view, this statement is “not very understandable”.
He adds that in the Videos contributed there is evidence of a markedly sexual attitude “of the accused towards the complainant” between laughter and screams “, and how he repeatedly caught the woman with the pretense that she would enter the house” to which she opposes, with the help “of a friend, “but also between laughs and screams.”
For all this, the court affirms that “the objective budget required by the Penal Code to convict for sexual abuse not allowed to be executed “on persons whose mental disorder is abused”.
He warns that what happened between the accused and the complainant that afternoon in the bathroom “could only be explained by violent conduct that the Public Prosecutor itself has rejected in its final conclusions, and which has also not been proven in the trial.”
The sentence is subject to appeal before the Criminal Chamber of the Superior Court of Justice of the Canary Islands.