February 25, 2021

sexual consent must be express



The Supreme Court has made public this Friday the complete sentence of 'the herd', in which explicit the sentence of 15 years for each of the five men for a continued crime of rape. In its reasoning, the High Court endorses the 'only if yes': sexual consent must be clear and express. In his sentence he cites the Istanbul Convention – the international standard of reference in sexist violence – to assume its definition of consent. That definition revolves around the clear expression of the will to have sexual relations: if there is no such, there is no consent; the absence of will or movement does not equal consent.

"The specific reference made in the Istanbul Convention to consent, as a manifestation of the free will of the person according to the context, makes clear the impossibility of interpreting an absence of physical resistance as such a will, it must expressly express itself or clearly deduced from the circumstances surrounding the event, "the sentence highlights. That is, the Supreme underlines that the consent must be express and that, if it is not, it is a negative and, therefore, a crime. It would be the judicial expression of the motto 'only yes is yes' that has become popular in recent months and seeks, precisely, to clarify that consent must be explicit and clear and not to move or not to act does not mean yes.

The situation in which the events took place implied a clear environmental intimidation, dictates the Supreme Court. Intimidation, together with violence, is one of the conditions that, according to the current Penal Code, are necessary to qualify crime as sexual assault. The sentence abounds in the concept of environmental intimidation and emphasizes that circumstances such as the age and physical constitution of victim and aggressor, the time and space where the facts or the context take place are important factors in deciding if such an intimidating environment exists. Force, he describes, can be physical "or moral".

These are requirements, continues the Supreme Court, which concur in this case and regardless of whether the aggressors were several or one. "ANDThe sexual assault on a young girl, just like the victim who was only 18 years old, and in a lonely place, hidden, narrow and without exit, to which she was taken by the arm of two of the defendants and surrounded for the rest, the same being addressed by the defendants, and intoxicated, this undoubtedly produced a state of intimidation, which, although it was not invincible, was effective in achieving the purpose proposed by the accused, which paralyzed the will to resist. the victim (…) without that at any time there was consent on the part of the same, and without it being admissible to force the right to extremes to demand from the victims heroic attitudes that will inexorably lead them to suffer greater evils ", concludes the sentence .

This intimidation led the survivor to adopt an "attitude of submission, not consent." Something, says the Supreme, that the condemned knew, given the account of the facts, and that they took advantage "to carry out with it various acts of sexual nature, with libidinous spirit and acting in common agreement". The Supreme abronca to the Audiencia of Navarre for not including in his factual account some facts that then it is proven, such as the alteration of the knowledge suffered by the girl for having drunk alcohol or the screaming and cornering that is seen in the videos that the aggressors recorded.

In addition, the presence of several concerted individuals to sexually attack a woman can be considered intimidation. The High Court underlines, referring to previous judgments, that the presence of several individuals, even without prior agreement, already implies the existence of "environmental intimidation". "In these cases the intimidating effect may be caused by the mere presence or concurrence of several people, other than the one who materially consummates the violation, since the existence of the The group can produce a state of environmental intimidation in the aggrieved person, "says the Supreme Court, recalling previous rulings.

The five sex offenders-Antonio Manuel Guerrero Escudero, Jesus Escudero, Jose Angel Prenda, Alfonso Jesus Cabezuelo, and Angel Boza-were convicted of a crime of rape to which two aggravating factors were added: one for being a group attack and another, for degrading and humiliating treatment. Regarding the latter, the Supreme Court argues that the crimes of sexual assault already involve a component "that necessarily implies the degradation, humiliation and humiliation of the victims" and that the aggravation must be applied when they acquire intensity, both in the act itself and in the act. situation created for the victim.

Something that took place in this case, given the numerous penetrations by anal, vaginal and oral route that the woman suffered in very short periods of time, "up to ten times", while they recorded it on video and took pictures of it. "Behavior that was imposed on the victim, which reveals a clear denigration as a woman, "says the sentence.

Enough with the negative

The sentence reviews the differentiation that the Penal Code makes between abuse and sexual assault. In sexual assaults, he says, the author uses force or intimidation to subdue his victim and for this he can use force but also "a climate of fear or terror" that annuls his capacity for resistance. A resistance that "can not and should not be especially intense": the victim's refusal is enough

"(…) The intimidation used must not be of such a degree that it presents irresistible, invincible or unusual gravity, it suffices that it is sufficient and effective on the concrete occasion to achieve the proposed purpose, paralyzing or inhibiting the will to resist of the victim and acting in a proper causal relationship, both due to material expiration and because of the conviction of the futility of prolonging an opposition which, if it does not lead to a positive result, could lead to greater evils, "he explains, citing an earlier ruling of the same room.

The Supreme Court argues that both sexual crimes and the concept of sexual freedom are susceptible to being affected by "the evolution of social thought". "Hhas been a clear exponent of the role of legal norms in the recreation of stereotypes and social roles that have defined for centuries the unequal distribution of rights and obligations, discriminating the possibilities of women, "he says.

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