Protestors have taken to the streets in Spain in their thousands this week, to decry the recent decision of a Barcelona court to acquit five men of raping a 14-year-old girl in October 2016.
The men, referred to in Spanish media as Manada de Manresa (Manresa Wolf Pack), were said to have taken it in turns to rape the complainant at a party in an abandoned factory. They were initially accused of sexual abuse, but prosecutors had sought to change the charges to sexual assault. Under Spanish criminal law, sexual assault is the most serious sexual crime, and encompasses rape and other penetrative assaults.
The court heard that the complainant had consumed alcohol and drugs and was in a state of unconsciousness, and could not recall every detail of the assaults. The court stated that she was unable to “accept or oppose the sexual relations maintained with the defendants, who could perform sexual acts without using any type of violence or intimidation”.
In order to be convicted of sexual assault, the defendant or defendants must “offend against the sexual freedom of another person, using violence or intimidation” (Title VIII, Chapter I, Article 178 of the Código Penal (Criminal Code)).
In the case of children under sixteen, Title VIII, Chapter II Bis, Article 183 refers, where the sentencing powers are greater.
The court was not satisfied that there was any violence or intimidation, and stated that the assaults had to be classified as the lesser charge of sexual abuse, which attracts a lower sentence.
The five men were, however, convicted of the lesser charges of sexual abuse, which is defined as “without violence or intimidation and without there being consent, perpetrates acts against the sexual freedom or indemnity of another person, shall be convicted of sexual abuse… non-consensual sexual abuse is deemed to be that perpetrated on persons who are unconscious…” (Title VIII, Chapter II, Article 181, as above).
They were sentenced to 10 to 12 years in prison and fined €12,000, however, they state that they intend to appeal.
This decision is a direct contrast to the ruling of the Supreme Court of Spain some months ago, where an 18-year-old woman was raped by five men in July 2016 after she had been dragged into an apartment building vestibule. The perpetrators filmed the attack and circulated it around their WhatsApp group, titled La Manada (Wolf Pack), which gave rise to the similar name in the Manada de Manresa case. They also stole the complainant’s mobile telephone.
In the court of first instance, it was ruled there had been no sexual assault. The police, upon watching the filmed attack, had reported that the complainant had kept her eyes closed and appeared “passive or neutral”. The defendants were instead convicted of sexual abuse, the lesser charge. One of the defendants was fined €150,000 for distributing the footage of the complainant. The case was looked at again by the Provincial Court of Navarre and they upheld the conviction, despite two dissenting judges arguing that the victim was subject to aggression.
The Supreme Court reversed this decision in June and substituted the conviction of sexual assault. The defendants each received a 15 year prison sentence, upgraded from an earlier 9 year sentence, with one of the defendants receiving an additional 2 year sentence for the theft of the complainant’s phone. Compensation was increased to €100,000. Prosecutors had argued that “sufficient intimidating force” was used against the complainant, and this was accepted by the court who stated she was “overcome by fear” and “could offer no resistance”.
It is difficult to comprehend how the defendants, in the most recent Manada de Manresa case heard in Barcelona, were not similarly convicted of sexual assault in view of the fact that the complainant, an unconscious 14-year-old child, would have been unable to offer any resistance. The complainant would have been able to satisfy a number of the aggravating categories as set out in the various Articles, had the court accepted this was sexual assault.
Rape is an incredibly violent crime, and it is unclear what levels of violence are required in order to convict defendants of sexual assault. However, does the issue lie with Spanish legislature, or the attitudes of the judiciary?
Written by Amanda Munro at BLM