Dani Alves did not want to hide yesterday in private his satisfaction with the result of the sentence that imposes on him a sentence of 4 and a half years in prison for sexual assault, only half a year above the minimum sentence provided for by law, and very far of the 9 years in prison requested by the Prosecutor’s Office and the 12 requested by the victim. His lawyer, Inés Guardiola, restrained, approached a cloud of journalists at the doors of the Audiencia de Barcelona and announced that she will fight “to the end” to obtain the “acquittal” of her client. He will present an appeal in the coming days and expects the court to decide on the release of the Brazilian until the sentence is final. The aim is for Alves to be released from prison by Easter.
The victim, a young woman who was 23 years old when she denounced the footballer for a violation that the court has given as proven, learned of the sentence accompanied by her lawyer, Ester García, and the girls who accompanied her in the process . The lawyer will also appeal the decision and questioned that the court has considered as a mitigating factor that the already convicted deposited the 150,000 euros of civil liability during the investigation. “There has been no financial or moral reparation”, he assured.
The Barcelona Court issued a decision yesterday that sentences Dani Alves to 4 and a half years in prison for a crime of sexual assault and considers it proven that he raped the young woman in the toilet of a reservation at the Sutton nightclub in Barcelona, ??the morning of December 31, 2022. “The victim did not consent and there are elements of evidence, in addition to the complainant’s testimony, to prove the violation,” he says.
The sentence gives total credibility to the victim’s account and details that he was the subject of a violent and non-consensual assault, but does not punish with the same harshness with which he describes the facts. The court applies a mitigating factor after assessing the advance payment of 150,000 euros. The fact that Alves has indicated that this amount be given to the victim regardless of the outcome of the trial expresses a reparative will that must be taken into account as a mitigating factor”, argues the court. A mitigating factor that Ester García assessed negatively because of the message that is sent to society in the sense that only those with money can benefit and reduce the sentence. “There has been neither an economic effort nor a moral effort. The money has been deposited following a judicial request. We cannot tell society that those who have financial capacity can benefit from a much lower penalty than that provided for by law”.
The court admits that Alves has benefited from the law of only yes is yes, since “it has established a wider punitive framework but a lower lower limit”. The previous law established minimum sentences of 6 years for sexual assaults when they are now 4 years after having unified the old crime of sexual abuse with that of sexual assault. With the mitigating factor, the court reduces the sentence by imposing a bracket of between 4 and 8 years and takes into account that Alves has compensated the victim with an amount well above the usual parameters.
The sentence describes that “the accused grabbed the complainant abruptly, threw her to the ground and, preventing her from moving, penetrated her vaginally, despite the fact that the complainant said no, that she wanted to leave”. And he considers that “this fulfills the type of absence of consent, with the use of violence, and with carnal access”, reason to condemn him for sexual assault. The victim’s testimony was key to proving the violation. It gives full credibility to his explanations regarding what happened those 16 minutes in the toilet, but not the moments before. Outside, the victim’s statements “do not correspond with the rest of the tests carried out” or with the images from the nightclub’s cameras, so the report of the viewing of images that he took is taken for granted carried out the office of Método 3 at the behest of the previous defense of the player, led by Cristóbal Martell.
The sentence states that the victim and two friends were invited by Alves to the reserve. There the young women and the complainant herself described a situation of discomfort and even “terror” that the court did not believe. The images show the young women dancing and Alves’ approach to the victim can be seen. The court understands that the victim entered the bathroom voluntarily “to be with the accused in a more intimate space” and not to talk to him, as he stated during the trial.
In any case, the above behavior does not imply that he consented to sexual practices. “These attitudes or even the existence of insinuations do not imply giving carte blanche to any abuse or aggression that takes place later; consent in sexual relations must always be given before and even during the practice of sex, in such a way that a person can agree to maintain relations to a certain extent and not show consent to continue, or not to lead to carry out certain sexual behaviors or do so according to some conditions and not others”.
In an innovative contribution, it is pointed out that “consent must be given for each of the varieties of sexual relations within a sexual encounter, since someone may be willing to touch without this implying that they access the penetration, or oral but not vaginal sex, or vaginal but not anal sex, or sex only with a condom and not without. Not even the fact that there had been touching would not imply having given consent for all the other things”.
Two paragraphs to frame and which indicate the course of action for future processes. You no longer need to justify why you entered a compound looking for privacy if later the answer was “no”.
