The judicial machinery has started with the opening of investigative proceedings by the Prosecutor’s Office of the National Court to determine whether or not the kiss in the Rubiales case is a crime of sexual assault. The key to this affair is consent – Jenni Hermoso calls for “exemplary measures” in her latest statement for this kiss which she now says was unwanted – but for the criminal process to prosper another step must be taken , legal sources agree: “The injured party should file a complaint”. And that, for now, has not happened.
The case has ended in this High Court because the events took place abroad (Australia) and affect two Spanish citizens. So the alleged crime, as already made clear by the Government delegate against Gender Violence, Victòria Rosell, “is prosecutable” in our country.
It is what could be applied in this case if criminal proceedings are opened. This article of the Penal Code provides penalties of one to four years for sexual assault for anyone who carries out any act that attacks the sexual freedom of another person without their consent. This kiss by Luis Rubiales to world champion Jenni Hermoso could fit into this type of crime, legal sources indicate, if it is proven that the kiss was not wanted by the player and has (he said it was a kiss like the one to his daughters) a sexual aspect. The current text that persecutes these behaviors is very clear: “Surprise or fleeting touches on erogenous zones are deserving of criminal reprimand, even if they are done over clothes (…), kisses on the mouth (… ), or touches on non-erogenous areas when the circumstances of the case justify appreciating an attack on sexual freedom”.
The Prosecutor’s Office could act ex officio, but in such cases this step is usually only taken when it comes to unprotected or vulnerable victims. This is not the case of the player of the Spanish women’s soccer team. So legal sources agree that without Jenni Hermoso’s complaint, the case currently has very little chance of going to trial. A formal process would be strange. The statute of limitations for the crime is five years. There is, therefore, a lot of time to report.
The Prosecutor’s Office of the National Court has started its machinery after the last version of Hermoso in which he claims that the kiss was not consented. It gives fifteen days to the player to appear, if she wants, and to be informed of her rights as an alleged victim of sexual assault contained in article 178 of the Criminal Code. It’s up to her to decide.
The proceedings initiated by the Prosecutor’s Office against Luis Rubiales are investigative, pre-trial. There is still no open case for crime. The case is in the study phase, while waiting to see if the complaint from the alleged victim arrives, to determine if there is enough evidence or not to continue. If the step is taken, the president of the Spanish Football Federation would be called to testify in court. If the case enters the criminal process, the rest of the administrative complaints would be paralyzed.
It is key in this case when classifying the crime and setting the penalties. With the new text of the only yes is yes law, you can be accused of sexual assault for a kiss on the mouth, even if no violence has been used, if the action is perpetrated – as the player now says – without the other person has given their permission and reports this lack of consent.
It is another avenue to explore in the criminal process. Rubiales’ status of superiority over the player could work against him if it is shown that there was an abuse of power in this kiss. When it occurs in a work environment – ??as is the case – this is also considered violence, legal experts indicate.
But it doesn’t end there. This kiss could also fit into a case of workplace harassment. Article 7 of Organic Law 3/2007, of March 22, which ensures the equality of men and women, punishes “any behavior, verbal or physical, of a sexual nature, which has the purpose or produces the effect of “attempt against the dignity of a person” in the work environment.
In Australia, where the women’s World Cup final was played and the events took place, the kiss could also be investigated. At least this is what sources from the New South Wales police collected by Efe point out. To open a case, it would also be essential for Jenni Hermoso to report or testify in this country. You could do it in person or virtually.
Among the half a dozen complaints presented from different fronts against Rubiales, another stands out, the one that accuses him of “obscene exhibitionism in front of a minor” for touching his genitals in the presence of the infanta Sofia.
