The judicial machinery has been launched with the opening of investigative proceedings by the National Court Prosecutor’s Office to determine whether or not the “peak” of the Rubiales case is a crime of sexual assault.
The key to this matter is consent – ??Jenni Hermoso requests in her last statement “exemplary measures” for that kiss that she now says was unwanted – but for the criminal proceedings to prosper, another step must be taken, legal sources agree: “the injured party would have to file a complaint.” And that, for now, has not happened.
The case has ended in that high court because the events occurred abroad (Australia) and affect two Spanish citizens. So the alleged crime, as the Government delegate against Gender Violence, Victoria Rosell, has already made clear, “is prosecutable” in our country.
It is the one that could be applied in this case if criminal proceedings are opened. That article of the Penal Code establishes penalties of one to four years for sexual assault for those who carry out any act that violates the sexual freedom of another person without their consent.
That “beak” of Luis Rubiales to the world champion Jenni Hermoso could fit into this criminal type, indicate legal sources, if it is shown that the kiss was not wanted by the player and has (he said it was a kiss like the one that gives their daughters) sexual overtones.
The current text that pursues these behaviors is very clear: “Surprise or fleeting touching of erogenous zones is deserving of criminal charges, even when it is carried out over clothing (…), kisses on the mouth (…) , or touching non-erogenous zones when the circumstances of the case justify appreciating an attack against sexual freedom.
The Prosecutor’s Office could act ex officio, although in these cases this step is usually only taken when dealing with 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 a complaint from Jenni Hermoso the matter currently has very little chance of going to trial. An ex officio process would be strange. The statute of limitations for the offense is 5 years. Therefore, there is a lot of time left to denounce.
The Prosecutor’s Office of the National Court has launched its machinery after the latest version of Hermoso in which he affirms that the kiss was not consented. It gives the player 15 days to appear, if she wants, and be informed of her rights as an alleged victim of sexual assault contained in article 178 of the Penal Code. The ball is, then, in his court.
The proceedings now initiated by the Prosecutor’s Office against Luis Rubiales are investigative, pretrial. There is not yet an open case for crime. The matter is in the study phase, waiting for the complaint from the alleged victim to arrive and to determine whether or not there are sufficient indications to move forward. If that step is taken, the president of the Spanish Football Federation would be called to testify in court. If the case enters criminal proceedings, the rest of the administrative complaints would be paralyzed.
It is key in this case when it comes to classifying the crime and setting the penalties for its commission. With the new text of the Law of only if it is yes, a kiss on the mouth can be accused of sexual assault even if no violence has been used, if that action is perpetrated – as the player now says – without the other person having given their permission and report that lack of consent.
It is another way to explore in the penal route. Rubiales’ state of superiority over the player could play against the former if it is shown that there was an abuse of power in that kiss. That when it occurs in a work environment -this is the case-, it is also considered violence, legal experts point out.
But the thing does not end here. That “peak” could also fit in a case of workplace bullying. 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 violating the dignity of a person” in the work environment.
In Australia, where the final of the Women’s Soccer World Cup was played and the events occurred, that kiss could also be investigated. This is stated, at least, by sources from the New South Wales Police collected by EFE. To open a case, it would also be essential for Jenni Hermoso to denounce or testify in that country. She could do it in person or virtually.
Among the half dozen complaints filed from different fronts against Rubiales, another stands out; the one that accuses him of “obscene exhibitionism before a minor” for touching his genitals in the presence of the Infanta Sofía.
