Tuesday, September 26, 2023

Judge Lucía Avilés, about Rubiales: “A non-consensual kiss is a crime. And sexual assault”

Menina 2022 Award from the Delegation of the Government of Catalonia and candidate for member of the General Council of the Judiciary, the magistrate of the criminal court number 2 of Mataró, Lucía Avilés, is one of the greatest experts in gender violence from the country. Analyzes the legal keys of the ‘Rubiales case’.

How would you categorize the episode between Luis Rubiales and Jenni Beautiful?

Legally it can be classified as a sexual assault. If it is considered proven that there was no consent, it is a forced imposition of a kiss.

How is non-consent to be demonstrated in this case? Is the victim’s statement enough?

Jenni Hermoso’s complaint is the key to the criminal process. Once it has started, the investigating court will investigate what has happened and take a statement from the complainant. Then, to the accused, Rubiales. And one of the investigative steps will be the viewing of the images. Those who were closest will be able, for example, to say whether or not the conversation between Rubiales and Jenni Hermoso that the federation president spoke about actually took place. And they can give details.

A video was leaked with some images in which the victim was supposedly joking. Doesn’t a victim have the right to joke?

This is related to what the United Nations said about the myths of rape, which the victim’s conduct cannot be addressed before, during or after. Many times an attempt has been made to tarnish the victim’s story. As happened with the case of the group rape of La Manada in Pamplona, ​​which also provided as evidence reports from private detectives who said that the victim had remade his life and that perhaps he had not had such a bad time. Or the events would not have occurred as she defended. Well, in this case, the same. In criminal proceedings, what is going to be prosecuted are facts. It is a concrete and denounced criminal act. And the conduct of the victim is completely outside the criminal process. Furthermore, not only in the investigation, but in the prosecution phase. When we are in court, the judge or judge has the obligation to deny those questions that they try to formulate that involve interference in the lives of the victims. When they try to question the credibility of the victim’s story by alluding to this type of thing, the law already tells us that this cannot be allowed and must be rejected.

Many times it is intended to tarnish the story of the victim, as in the case of La Manada

It was always like this?

Before, in crimes of sexual violence, it was very common for them to say: ‘This man has not been able to do this because he is a good family man, he is a hard worker, honest…’. And those are not objective parameters to prosecute criminal conduct.

There is also often a presumption of guilt for the victim. He is asked to speak, to denounce…

Sexual violence falls within what we know internationally as violence against women. Those facts that affect us women for the mere fact of being women, and that also affect us disproportionately. In the Spanish legal system, we differentiate between gender violence and sexual violence. In gender violence they are public crimes, the victim’s complaint is not necessary, but the victim’s statement in the criminal process is necessary. But not the complaint as an impulse of the criminal process. But in the case of sexual violence, it is necessary. The legislator considers that criminal proceedings cannot be initiated if there is no complaint by the victim. This does not mean that all the weight of the procedure falls on the victim. Once it begins, it is in the hands of the police, the Prosecutor’s Office, and the investigating court to agree and carry out all the investigative procedures that are necessary. In another era, the criminal process did fall on the victim. There were some bad synergies. And it happens on many occasions, because they are crimes that are usually committed in private and you only find his statement against hers. But this is not the case, because it has been done with light and stenographers. It would be different if it happened in a bathroom.

What role would abuse of authority play?

It is a power relationship established between him and her, in which he has power over her, a hierarchical dependency relationship. And this ultimately determines the abuse of power that he (Rubiales) has done to consider that he could carry out this type of conduct. Also, if we see the image of her, he is fucking her head. He gives the feeling of: ‘I want to do something, I do it and I objectify you.’

If we see the image, he grabs it by the head. He gives the feeling of: ‘I want to do something, I do it and I objectify you’

A few days ago, the filmmaker Woody Allen said in reference to the “Rubiales case”: “He is not raping her, he is only giving her a kiss.” And he wondered what was wrong.

Woody Allen is not the best example either. But it is very typical. Although society evolves. What was not reprehensible before, not only legally, but socially, now it is. For a change and a social evolution. Before, a kiss might not constitute a criminal act, but today it does. And there are many sentences that recognize it. Before there was an intermediate jurisprudence that considered it as a light crime of coercion. Not now. This is a crime. And sexual assault.

There is no discussion about it anymore.

No. And if the facts were not finally proven, it does not mean that they did not happen. And even if an acquittal is handed down, socially, it will continue to be reprehensible.

What penalties is Luis Rubiales exposed to?

to one prison sentence of one to four years. If a conviction were issued and it was less than two years, it would not determine the entry into prison. Suspension could be agreed subject to conditions. The one who does not commit a crime in a certain period of time, who complies with communication or approach prohibitions, or who, where appropriate, completed a training course on sexual education or on equality and gender violence.


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