The conviction of Dani Alves establishes the sexual assault as proven by proving the lack of consent of the victim and the use of violence by the footballer, but it leaves open some questions about why it imposes a minimum sentence.
The law has benefited Alves because it imposes a lower sentence than if he had been tried under the previous Penal Code. Before the previous reform, the minimum sentence for sexual assault was six years, and now, after the unification of the crimes of sexual abuse and sexual assault, the lowest sentence is four. At a legal level, however, the ruling sets a significant precedent, since it emphasizes that consent must be given before and during the practice of sex and in the different modalities that can be practiced. Some jurists consulted consider that without the law of just yes it means yes, Alves could have been acquitted.
The law establishes that when a mitigating circumstance is applied, the sentence will be imposed “in the lower half of that established by law for the crime.” In this case, the crime of sexual assault is punishable by sentences of 4 to 12 years in prison, which with a mitigating circumstance is reduced to a range of between 4 and 8. The court, despite applying a simple and unqualified mitigating circumstance , has imposed the lowest sentence.
The victim, as revealed by her lawyer, is satisfied that the court “finally believed her” and insisted that “she does not want compensation, but she does want a greater penalty.” The private prosecution announced the presentation of an appeal because she is dissatisfied with the sentence imposed. He criticizes the application of a mitigating circumstance to repair the damage when during the investigation Dani Alves had an attitude contrary to covering the damage caused. In this sense, it is worth remembering that in an interview in this newspaper the player said that he forgave the victim and his mother spread the identity of the complainant on social networks.
The court has considered that the 150,000 euros of bail whose payment was ordered by the court represents a “reparative desire”, a sufficient element to reduce the sentence. He highlights that the contribution is higher than that usually imposed by the court and that the player requested that the victim keep the money even if he was acquitted. The judges apply it despite recognizing that “it represents a small amount in relation to his assets, so it does not represent much of a reparative effort.” The victim’s lawyer reproaches that if you are rich, they will reduce your sentence. The monetary contribution is established by a standard scale such as that for traffic accidents.
Alves has all his accounts seized by a judicial process in Brazil with his ex-wife for non-payment of his children’s support. To pay the bail he turned to his friend Neymar and the money was left to him by his father. In addition, the footballer is awaiting receipt of 3.2 million euros that the Treasury owes him as a result of a process that he won in the National Court.
There are several possibilities for Alves to be released. The first, and this is what he is going to try, is to request the court to release him on parole while waiting for the sentence to become final. To do this, he plans to pay a high deposit as a guarantee that he is not going to abscond with the money he hopes to collect from the Tax Agency. Alves is in provisional prison and could only spend eleven more months in preventive detention if the sentence is not declared final. Another possibility would be through ordinary prison permits – which range between 36 and 48 days a year – but which can only be granted when the sentence is final. And when he reaches a third of the sentence, always with a final sentence, he could request the third degree of penitentiary, which would allow him to go to jail only to sleep.