The Prosecutor’s Office of the National Court has opened pre-trial proceedings against the president of the Royal Spanish Football Federation, Luis Rubiales, to determine if there are indications to initiate legal proceedings for an alleged crime of sexual assault. Rubiales was suspended from his position this Saturday by decision of FIFA and the RFEF held an extraordinary assembly this afternoon.
As it is an act committed by Spaniards abroad, the jurisdiction lies with the Prosecutor’s Office of the National Court, which has received several complaints against Rubiales for the kiss on the mouth of the player of the Spanish women’s soccer team, Jenni Hermoso, in the delivery of trophies after winning the World Cup final.
Article 91.1 CP establishes that “to proceed for the crimes of assault, harassment or sexual abuse, a complaint will be required from the aggrieved person, from their legal representative or complaint from the Public Prosecutor, who will act weighing the legitimate interests in the presence”.
In view of the public statements made by Jenni Hermoso, “the sexual act suffered by her and carried out by Rubiales, was not consented to. Given the extra-procedural moment in which we find ourselves and the unequivocal nature of her statements, it is necessary determine their legal significance. For this reason, the National Court Prosecutor’s Office has opened pre-procedural investigation proceedings to investigate the facts that could constitute a crime of sexual assault”.
On Friday, in another extraordinary assembly of the RFEF, Rubiales assured that the kiss was “mutual” and “consensual”.
As a first step, the prosecutor in the case has agreed to address the player in order to offer her shares, giving her the possibility that, within a period of 15 days, she contacts the Prosecutor’s Office of the National Court, and thus Inform you of your rights as a victim of an alleged crime of sexual assault in case you wish to formalize an express complaint.
In a statement published by the national team player on August 25, Hermoso assured that “at no time did the conversation that Rubiales referred to take place and that, much less his kiss was consented. In the same way I want to reiterate what I already said at the time, that this fact had not been to my liking. The situation caused me a shock due to the context of the celebration and with the passage of time and, after delving a little deeper into those first sensations, I feel the need to denounce this fact since I consider that no person in any work, sports or social sphere should be a victim of non-consensual behaviour”.
In the same statement, the player added: “I felt vulnerable and the victim of aggression. An impulsive, macho, out of place act and without any kind of consent on my part.”
The investigation decree explains that Rubiales’ act of kissing Hermoso on the mouth while holding the player’s head with both hands could constitute a crime of sexual assault, provided for and punishable in article 178 of the Code Penal.
The prosecutor is based on Circular 1/2023, of March 29, of the State Attorney General’s Office, on the criteria of action of the Public Prosecutor’s Office after the reform of crimes against sexual freedom operated by Organic Law 10/2022, of September 6, known as the “yes is yes” law: “In any case, surprise or fleeting touching of erogenous zones is deserving of criminal charges, even when done above clothing; kisses on the mouth, even if not the so-called oscula; or touching on non-erogenous zones when the circumstances of the case justify appreciating an attack against sexual freedom”.
The prosecutor supports this opening of the investigation in a recent judgment of the Supreme Court that assumes the criteria of the General Prosecutor’s Office, and that gives as some examples in which it would be possible to follow “a kiss on the mouth or the neck or some minor touching… “.
In addition, the decree notes that by means of the Instrument of ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence, made in Istanbul on May 11, 2011, Spain assumes the commitment to “Protect women against all forms of violence, and to prevent, prosecute and eliminate violence against women and domestic violence”.
For its part, Article 2.1 establishes that “this Convention shall apply to all forms of violence against women, including domestic violence, which affects women disproportionately.”
The Prosecutor’s Office insists that “violence against women” should be understood as “a violation of human rights and a form of discrimination against women, and all acts of gender-based violence that imply or may imply for women will be designated. damage or suffering of a physical, sexual, psychological or economic nature, including threats to carry out such acts, coercion or arbitrary deprivation of liberty, in public or private life”.
