On July 7, 2016, at the Festival of San Fermín in Pamplona Spain, five men between 25 and 30 years old sexually assaulted an 18-year-old woman. The attackers met the young woman at dawn and began to walk alongside her through the streets of the city. At one point, the five young men led the woman at the entrance of a building, surrounding her so that she could not escape.
They sexually assaulted her for nearly 20 minutes and she recorded the events on video. Afterwards, they stole her cell phone and abandoned her at the scene of the crime. Hours later, the young woman reported the rape to the police.
In the decision, the Court finds the woman’s testimony credible; recognizes that she did not give her consent to the sexual acts, and acknowledges that the aggressors exceeded her in number and physical size. However, after reviewing the video of the assault, the Court also determines that the woman does not show signs of violence or intimidation, claiming that she does not actively resist. As a result, the Court rules that the necessary requirements under the Spanish Penal Code are not met for the attack to be considered sexual assault. Instead, the Court rules that only sexual abuse occurred, a crime punishable by a lesser penalty.
In a dissenting opinion, one of the magistrates argued that the aggressors should only be punished for the theft of the mobile phone. The magistrate discredits the victim's testimony by claiming that the victim's statements were different on each occasion of retelling and, therefore, were not credible. In addition, he interprets the sounds of the video as moans of sexual pleasure, which leads him to conclude that the victim did not experience any suffering or pain.
This decision sends a very dangerous message to society and, specifically to women, that women who suffer sexual assault must be able to prove they actively defended themselves or their testimony could be questioned during legal proceedings. In addition, it shows the prejudices and stereotypes that still persist in the criminal justice system demanding that women act in a particular way in order to be credible when testifying as victims of rape.
The judicial decision is available only in Spanish.
Judges who issued the decision
José Francisco Cobo Sáenz
Raquel Fernandino Nosti
Ricardo Javier González González (Voto particular / Dissenting Vote)