Netflix has just released the documentary about the rape of La Manada de los Sanfermines. A sexual assault that stirred consciences, by putting the focus on the aggressors and not the victim, and lit the first flame of the fuse of the Law of only yes is yes. A rule later questioned, by opening the door to freedom for more than a thousand rapists.
And when the waters seemed to return to normal, the sentence in the Dani Alves case, for many more lenient than expected (4.6 years in prison, compared to the 9 requested by the Prosecutor’s Office), has once again sowed doubts about the judicial response. to sexual assaults.
There is no better time, then, than an 8M to put yourself in the shoes of a magistrate to better understand how these ups and downs are digested and managed in her world. Responds Cristina Ferrando, senior magistrate of the courts of Barcelona.
The Law of only yes is yes led to criticism, due to the reduction of sentences, from a sector that called the judiciary sexist, with a majority of women. Could or can something else be done?
The preparation of a law and its approval corresponds to other powers of the State. The courts have the function of applying it with legal technique. And that’s what we did. It is evident that the rule had technical defects that led to the legislator himself modifying it months later. We had to review numerous sentences, reduce sentences and dictate freedoms, but all with legal criteria.
How do you digest those harsh criticisms if everything complies with the law?
We judges are accustomed to having our sentences reviewed by higher bodies. Any magistrate also knows that his resolutions are subject to criticism. Criticizing is healthy in a rule of law. Defame, manipulate and disqualify, no. But criticizing, providing different visions with arguments, of course yes.
What happened with this law was a very irresponsible maneuver on the part of some politicians who tried to spread the idea that judges benefited sexual offenders for sexist reasons. As time passed, it is clear to me that society understood that the problem was not caused by the judges.
And when the waters seemed calm, with this law, Dani Alves’ sentence came…
That ruling is a reasoned judicial decision. It applies the rule most favorable to the accused, which provides for a lower minimum sentence, applying the initial version of the Law of just yes. The mitigation of reparation of damage is applied as a simple and unqualified mitigation and does so with technical and jurisprudential criteria, assessing the circumstances of the case. It also imposes 5 years of supervised release and 9 years of removal.
There was also criticism, even from the College of Journalists of Catalonia, for a good part of the hearing being held behind closed doors.
In the Alves case, the media have been able to offer complete information about the trial and the sentence. And the ruling, which can be appealed as you say, is a very technical and motivated ruling. Regarding the trial, the court made a great effort to guarantee the protection of the victim and her privacy without diminishing the procedural guarantees of the accused, which is complicated in cases as high-profile as this one.
What has changed in the last two decades in the treatment of women victims of sexist violence in the courts?
It has changed that we have a law on violence, that we have specialized courts, that the heads of these courts are specialists in the matter, that we have permanent training in gender violence and gender perspective, that the Judicial School has incorporated transversal training in gender perspective as well as specific training on violence against women, that society demands more intervention and reports more, that resources have increased and the catalog of support professionals in the judicial fight against this scourge has been expanded. .
But sometimes the system fails. Does it especially hurt when you fail to foresee a risk situation for a victim and there is an attack because a protection or restraining order was not issued at the time?
If you allow me, hitting the mark is not the verb that defines what we do. Any decision, including a restraining order or a protection order, is based on the information available at the time of adoption: statements of those involved, witnesses, investigation elements, forensic assessment… Does this allow us to foresee any future behavior? No. Can we do prospective justice? No.
Do you think that the sentence of ‘la Manada’ (the documentary has just been released on Netflix) marked a before and after in the fight against sexual assaults?
I think it allowed for greater attention to sexual assaults and greater interest in what response as a State is given to this criminal phenomenon.
Is consent, to which the Alves case sentence devotes special attention, a good tool to achieve more convictions?
Consent has always been at the center. A non-consensual sexual relationship has always been criminal. The novelty of the law of only yes is yes is, in summary, in the elimination of abuses (everything is sexual assault), the change in some penalties, the regulation of greater resources for caring for victims… but not in the consent, which has always been the center of the legal debate.
And about false complaints?
I refer to the data from the Prosecutor’s Office, 0.01%, which are the cases in which a final conviction has been issued for false accusations.
How does a judge feel when a woman, having confirmed sexist violence, reports that she wants to withdraw the complaint? Does she try to convince her otherwise?
The withdrawal of the complaint does not always mean the end of the procedure. When there is something more than the victim’s statement, when there are other objective elements (part of injuries), the procedure can advance. In any case, we make great efforts to ensure that before making this type of decision, the victim is perfectly informed of her rights and the consequences of her decision.
What is going wrong so that women continue to be murdered, despite all the campaigns. Do you think that in the judicial field more could be done to reduce these painful figures?
Work must continue to improve the training and education of children and adolescents, comprehensive care and detection of violence against women, and society must maintain zero tolerance against sexist behavior.
