The Supreme Court has annulled a reduction that the Alicante Provincial Court applied to a sexual offender under what is known as the ‘yes means yes law’, considering that the “extreme” violence used in the rape would not allow his sentence to be modified. lower prison but would raise it.
The magistrates emphasize that, in this case, the accused used “intense, unusual” and “prolonged” violence that – after the reform of the Penal Code – carries a minimum impossible sentence of 11 years in prison for the crime of sexual assault, a figure higher than the 9 years that was imposed on the aggressor in the lower court sentence or the 7 years that was applied after the review.
In the ruling, to which Europa Press has had access, the Criminal Chamber explains that the Organic Law of Comprehensive Guarantee of Sexual Freedom contemplates greater penalties for cases in which the attack occurs with “extremely serious violence.” For this reason, he considers that in this case the new legal wording does not benefit the prisoner and that the appropriate thing is to apply the previous Penal Code and leave him with the original sentence of 9 years in prison.
The man was convicted of an attack that took place in June 2015, when he met his then partner in a pub in a municipality of Alicante. That night, she told him that she wanted to “leave the relationship.” They both left together, in the same car, with the intention of “going to their respective homes.” He, however, strayed “down a country road” and raped her while she yelled “slut,” “whore.”
She managed to break free in the middle of the attack and ran away. He followed her until he caught up with her. According to her sentence, he “pushed her, she fell to the ground, and once she was lying down she kicked and punched him many times all over her body, including her head and face.” She was left semi-conscious.
The accused “after seeing the violence with which he had attacked” his partner told her: “Baby, how I made you feel.” And he took her to the emergency room. Of course, he warned her that she had to tell the health workers that “she had fallen.”
The Provincial Court of Alicante sentenced him to 9 years in prison for a crime of sexual assault and 3 years for a crime of injuries; In addition, he imposed a restraining order and communication order for 11 years.
In January of this year, as a result of the Organic Law of Comprehensive Guarantee of Sexual Freedom – known as the ‘law of only yes is yes’ – the prison sentence related to the crime of sexual assault was reduced to 7 years as it was more beneficial. The woman, dissatisfied with the reduction, filed an appeal before the Supreme Court.
The victim alleged that her right to effective judicial protection had been violated and criticized the fact that the fifth transitional provision of the Penal Code had not been applied, which, in her opinion, “neutralizes any possibility of reducing the sentence set in the final sentence.” The Prosecutor’s Office joined her appeal.
In the resolution, for which Judge Javier Hernández García was the rapporteur, the Supreme Court explains that, in this case, “there has been no violation of the law due to the non-application, in the sentence review trial, of the different regimes invoked transients”.
That said, the magistrates analyze whether the decision of the Provincial Court to review the sentence complies with the rule of retroactivity of the Penal Code, “in light of the plenary jurisprudence” of the Supreme Court itself. “The answer, which we already anticipated, must be negative,” they point out.
Thus, the court upholds the appeal filed by the woman, annuls the review of the sentence and imposes the initial sentence – 9 years in prison – for the crime of sexual assault.
