"It is not possible that the courts, based on a different understanding – legitimate, but that is not up to us – to introduce through the window what the legislator has dismissed through the door." With this affirmation, the Supreme Court has held that it is unavoidable, under the law of only yes is yes, to reduce the sentence imposed on a man for rape from 12 to seven years.

The events occurred in Manresa in July 2019, during a party with drugs and alcohol in a flat to which the three defendants – the other two did not appeal the conviction – invited the girl, 17 years old. According to the proven facts, the victim, who was very affected by the consumption of alcohol and medication, "neither consented to the sexual acts nor could avoid them, trying in all three cases to get rid of the respective aggressor with the scarce means and physical strength at his disposal". It was ruled out that the three accused had collaborated in the rapes of the others, which would have increased the penalty.

The has been notified the day after the Plenary of the Criminal Chamber agreed to ratify the first downward reviews of firm convictions for sexual assaults as a result of the reform of the Criminal Code promoted by the Ministry of Equality.

The judges consider that this more favourable reform - which has already been repealed - should also be applied in this case. Aggravated rape was the category that saw the minimum sentence reduced the most with the yes is yes law. From 12 to seven years, which is what the Supreme Court transfers to this specific case.

The sentence, of which the magistrate Leopoldo Puente has been rapporteur, explains that the Audiencia de Barcelona "resolved, within the punitive framework established by the legislator (who is constitutionally responsible for doing so based on thoughtful criteria of proportionality), to impose the penalty in its minimum legally possible extension: then 12 years in prison".

"Maintaining the criteria of judicial individualization of the penalty taken into account by the provincial court," he continues, "it is appropriate to rectify the sentence that was imposed, in view of the subsequent more favorable legal regulation, maintaining it, as agreed, in its minimum legally possible extension: now, seven years in prison."

The high court explains that it has no option to do otherwise: "The assessment in terms of concrete proportionality that the courts correspond to us cannot and should not ignore limits that, based on criteria of rationality (which may, as always, be shared or not) the legislator has established. In other words: if it is considered legislatively that sexual assault will not necessarily be more serious, deserving of greater penalty, for the sole circumstance that violence or intimidation occurs, being possible, also when this happens, to impose the minimum penalty that the criminal type establishes (seven years in prison), it is not possible for the courts, From a different understanding, legitimate, but that it is not up to us to carry out--, we introduce through the window what the legislator has dismissed through the door."

The sentence has the support of four magistrates and the particular vote of Judge Susana Polo. In line with the report of the Prosecutor's Office, the magistrate understood more favorably the new law of yes is yes, but defended that what was proportional to the seriousness of the facts was to have imposed a sentence of 11 years in prison, not seven.

  • Supreme Court
  • Manresa
  • Justice

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