Two convicted of sexual abuse in the province request a sentence reduction

The entry into force of the Law for the Comprehensive Guarantee of Sexual Freedom, popularly known as 'only if it is yes', which eliminates the distinction between sexual assault and abuse and places consent at the center, came into force on October 7 after its publication in the Official State Gazette (BOE). This has caused that until yesterday two lawyers have presented separate appeals for the Provincial Court of Tarragona to review, downwards, the sentences imposed based on the new law. In both cases, the convicts were sentenced for a crime of sexual abuse: the sentence for one was eight years in prison and for the other, six and a half. In one of them the Prosecutor's Office has already ruled against.

What at first had to be a law so that the sentences for acts related to sexual crimes were tougher in some cases, such as when there has been no explicit consent from the victim to have sexual relations, has passed to be the center of the controversy with the interpretation that certain judges make when applying it. And given this disparity in criteria, defense lawyers have begun to file appeals to review the sentences of their clients prosecuted for sexual abuse since they consider that the new law is more favorable to the interests of their clients.

In both cases, the victims of the abusers were under 16 years of age.

One of those affected is a man who in 2018 was sentenced by the Second Section of the Provincial Court to eight years in prison for the crime of sexual abuse of a child under 16, in addition to five years of probation, a restraining order and the payment of compensation of 6,000 euros. The Provincial Court considered it proven that the defendant spent the night on a sofa in the dining room of his brother's home, in the Campclar neighborhood of Tarragona. That same night, a minor –she was ten years old–, the daughter of a relative, also occupied the dining room, sleeping on the mattress. The condemned man began touching the last parts of the victim. On this case, the Prosecutor's Office has already issued a report in which it opposes the modification of the sentence.

The second case also corresponds to the same section of the Provincial Court of Tarragona and the sentence is dated November 20, 2018. The defendant, in this case, was convicted of two crimes: one continued sexual abuse of a child under twelve years (four years in prison) and another for sexual abuse of a child under twelve (two and a half years). He also was imposed ten probation.

The defendant, in 2015, worked at the Miami Platja sports center as a janitor. One of the victims was 12 years old and had a good relationship and trust with the defendant. In the first semester of 2015, he told the minor that she accompanied him to the meter room to turn off the lights. Once there she began to kiss and touch him. On another occasion, with the excuse of giving her something of her own, he took her to the accountant's room and touched her buttock.

At approximately the same time, he did practically the same thing with another 12-year-old girl. After what happened, both minors approached the place where their friends were and also a janitor, to whom they explained what had happened.

These are the first cases of request for sentence reduction that have taken place in the province after the entry into force of what is known as the 'only yes is yes' law. Since then, there has been a barrage of requests from defense attorneys for defendants accused of sexual assault crimes across the country. And the controversy is served, because what had to be a regulation in favor of the victims, some releases or sentence reductions are achieving the opposite result. In fact, Neus Oliveras, professor of Constitutional Law at the URV and specialist in gender equality, explains that "what is known as re-victimization is taking place, that is, the victim relives and suffers again, in another way, the situation that he suffered with the assault or sexual abuse”.

The minimum sentences are reduced by one year if there is no penetration and two years if there is penetration

Regarding the law itself, experts in criminal law have very different opinions. It should be remembered that before, if there was no penetration, the abuse was punishable between one and three years, and the assault between one and five; Now it is only considered assault and is punishable by between one and four years, that is, the maximum possible sentence is reduced by one year. And in the case of penetration, before, abuse was punishable by between four and 10 years, and assault with between six and 15. Now it is unified into assault, and the penalty goes from four to 15, with the lowest penalty being reduce two years.

Tomàs Gilabert, a criminal lawyer from Salou, sees the drafting of the rule as a "legislative error", as he maintains that "while penalties for crimes of abuse are tougher everywhere, here the minimum sentence is lowered by two years", and explains that "the crimes of abuse and assault are equated, but there is a legal vacuum that apparently causes abuse to be decriminalized in minors between 16 and 18 years of age."

On the contrary, another criminal lawyer from Tarragona, David Rocamora, defends that "it is a good law, people argue about the consequences, but they are perfectly acceptable." In this sense, he explains that “there are criminal proceedings in which judges, due to the nature of the case, apply the minimum penalty. If the penological framework varies, and with the new law the minimum sentence is less, it is perfectly reasonable that the convicted person wants a reduction and, therefore, a review is carried out. In addition, the constitution imposes the retroactivity of the most favorable sanctioning norms for the accused. And this is it in a certain aspect: the reduction of the minimum sentence.

The new law does not have a transitory provision either, which according to Rocamora "is a rule that regulates cases in which there are changes in legal regimes." And he insists that “the revision of the sentences imposed in their minimum degree cannot be avoided because the current minimum degree is more beneficial. It is not machismo, it is a matter of law, with which the judges are obliged to rule on the requests for review, and I understand that to grant them if the case that is being raised has sufficient identity with the one that provides for the minimum sentence in the new legal framework ».

The same account, about the transitory provision, David Lanaspa, criminal lawyer and doctor of Law. He points out that the new law gives rise to a "debate whose legal solution is not simple", and stresses that this not only affects the accused, but also the victims, "because of the anguish of not knowing what will happen to their aggressors».

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