The Supreme annuls a sentence that excused sexual abuse in marriage

"The right to sexual freedom cannot be suspended or limited when marriage is contracted." A sentence of supreme court has used this argument to condemn an ​​old man from Palencia for sexually abuse of his wife, in addition to subjecting her to constant mistreatment for several decades. The Supreme Court's criminal chamber had to intervene after the Superior Court of Justice of Castilla y León chose to acquit him of this crime, justifying the legality of the abuses in which they were older people, raised in rural areas and convinced by so much so that the sexual submission of women is part of life in marriage. "The husband's behavior of demanding marital relations and that of the wife's reciprocation acquires justification in the conviction, shared by both, that this reciprocity constitutes a consubstantial element of the conjugal relationship," the territorial court said in a judgment now annulled.

The three resolutions of the process, to which has had access, reveal that the case came to the hands of Justice when one of the victim's children called the Palencia Civil Guard in 2017 to report that his mother had been threatened with death by his father. It was then that the victim, an octogenarian, recounted how she had been subjected to insults and contempt for several decades by her nonagenarian husband, with whom she had been married for 55 years. What the judges define as a "constant control of life, customs and friendships" in addition to insults and harassment that led the victim to alcoholism.

On several occasions this mistreatment was transferred to the sexual field. The woman recounted how she was sometimes forced to have sex with her husband. The old man acknowledged during the trial that his wife was "reluctantly" going to bed with him. The psychologist who treated the woman explained that, after half a century of abuse, the victim had "normalized" the violence within her marriage. And the Provincial Court of Palencia had no doubts: they imposed six months in prison for threats, one year and ten more months in prison for mistreatment and a fine of 4,320 euros for the abuses.

Already during the trial, the defendant's defense put on the table the alleged belief that he was exercising "a married man's right to have sexual relations with his wife", influenced by "a rural environment and little training". Something that the Audiencia de Palencia flatly rejected, slipping that he could even have been convicted of rape and not just for abuse. But the case reached the Superior Court of Justice of Castilla y León and the judges decided to remove the crime of abuse taking into account that argument: marriage does not require sexual relations but, he points out, they had been together for 55 years, had five children and did not You can ignore, said the judges, "the social and cultural coordinates of the time and the rural environment in which it has developed, strongly influenced by religious conceptions of a traditional nature."

For the TSJ of Castilla y León, the sexual imposition of the husband and the supposed submission of the woman, therefore, were accepted by both and the abuses were not abuses but a consensual relationship despite the fact that the woman had denied it and the man he had recognized it. "The husband's behavior of demanding marital relations and the wife's reciprocation acquires justification in the conviction, shared by both, that this reciprocity constitutes a consubstantial element of the conjugal relationship," reasoned that court formed by Ignacio de las Rivas, Carlos Javier Alvarez and the president of the TSJ, José Luis Concepción.

From their statements it follows, according to what this court said in 2020, that neither of them considered that the woman's consent was being violated "beyond the freely acquired marital commitment as it was understood by both in accordance with socially accepted uses" in that environment. An environment, the judges say in reference to an elderly couple in rural Palencia, in which, according to their criteria, "the vertiginous changes in mentality experienced in other areas of society are difficult to assimilate."

An argument that, after an appeal from the Prosecutor's Office, has not passed the filter of the criminal chamber of the Supreme Court. The judges have decided to rehabilitate his conviction for sexual abuse, flatly rejecting that a sexual crime can be excused for having been committed within a marriage: "The rights to bodily autonomy and sexual freedom cannot be suspended or limited when marriage is contracted says the Supreme Court. Nor if the two grew up in a time or environment where such abuse was supposedly normalized. "The defendant cannot rely on tradition to reify and deny the freedom of the person he married," the judges settle.

The Supreme Court, with Judge Javier Hernández as rapporteur, makes an amendment to the entire sentence of the territorial court and reasons why, in no case, a judge can forgive a sexual abuse for the fact that it occurred within a a marriage. The requirement of full and free sexual consent, says the Supreme Court, "cannot be excluded or modulated downwards in response to cultural, ideological or religious constructions" as is clear from the Istanbul Convention signed by Spain in 2011.

After 55 years of marriage and constant abuse, the victim did not consent. The prolonged mistreatment that the defendant dispensed to the wife created the climate of medial superiority necessary, as a formula of prevalence, to obtain from her, in clear disregard of her sexual freedom, the consent to maintain the relations that she required". This type of Prolonged violence, says the Supreme Court, "dignify the victim by subjecting her to the rule of the victimizer". This explains, according to the judges, that in many of these cases "for years a situation is endured that from outside the conflict is perceived as extremely unbearable" .

In these circumstances, according to the Supreme Court, refusing a sexual relationship is "more difficult than saying yes" and not explicitly refusing, he adds, "is not equivalent, far from it, to valid consent." What was in that marriage was not, as the Superior Court of Castilla y León claimed, a "shared and voluntary acceptance of roles" but "a state of subjection consistent with the process of continuous victimization suffered." The "docility" of the victim when submitting to her husband's abuse, she reiterates, "cannot be interpreted as acceptance or as a natural development of the marital relationship, but rather as an obvious indication" of what the judges call "protracted domestic terror".

The woman, the Supreme Court settles, did not agree to have sexual relations with her husband because she wanted to, but because it was imposed on her after decades of mistreatment and impositions. "The framework of domination and objectification deployed by the accused deprived the victim of the ability to react and self-protect necessary to emancipate herself from her victimizer," says the sentence.

The ruling of the Supreme Court upholds the appeal of the Prosecutor's Office and reinstates the fine that the Court of Palencia imposed on him for the crime of sexual abuse. It also rejects the convict's appeal and confirms his other two sentences: 22 months in prison for habitual mistreatment and 6 more months in prison for threats. The day one of the victim's sons decided to call the Civil Guard of Palencia, it was because he heard how he threatened to kill his mother: "Bitch, I'll kill you tonight."

Sources of the case explain to that the sentence has been notified a few days ago and that for now the process has not entered the execution phase. Justice has not decided for now, therefore, if the nonagenarian sentenced in total to more than two years in prison should enter prison to serve his sentence.

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