, Madrid, Spain, Jun 21 – Spain’s Supreme Court on Friday started examining a case so controversial it sparked mass protests after five men accused of gang-raping a woman were convicted of the lesser crime of sexual abuse.
The country’s top court will look at the crux issue at the heart of the case: was it rape in the eyes of Spanish law, which requires evidence of intimidation or violence?
“We maintain that the facts are constitutive of rape,” Prosecutor Isabel Rodriguez told the court in Madrid. The defence lawyer had yet to speak.
The men were accused of sexually assaulting the woman, then aged 18, at the entrance to an apartment building in Pamplona on July 7, 2016, at the start of the popular week-long San Fermin bull-running festival.
The five filmed the incident with their smartphones and then bragged about it on WhatsApp where they referred to themselves as “La Manada,” or “The Pack”.
In April 2018, they were each sentenced to nine years in jail for sexual abuse but judges acquitted them of the more serious offence of rape.
It was decided there had been no violence or intimidation and that the victim did not resist or fight back.
One of the three judges had argued that the men should be fully acquitted.
That decision — and the subsequent release on bail of the defendants — sparked nationwide protests.
“If you resist they kill you, if you don’t resist you consent. What to do?” read one sign at a protest.
A demonstration was planned in front of the Supreme Court late Friday.
Since the verdict, the Spanish government has announced it wants to reform the criminal code to stipulate that a woman must give her explicit consent for sex.
That would be based on a tough new Swedish law that states a person can be accused of committing rape if the other person has not given explicit consent, even if there is no violence or threats.
– ‘Not consent’ –
On Friday, five judges at the Supreme Court, including two women, started examining appeals filed by prosecutors and the men’s defence lawyers.
The five defendants, all from the southern city of Seville, were not called to the stand and the victim has never wanted to appear in public.
Minutes after meeting the drunk young woman, the men had unprotected sexual relations with her that included oral sex, and left her half naked in the doorway.
One of the offenders stole her mobile.
The footage they shared on WhatsApp has previously been used against them in court but also against the victim for her passivity during the act.
“The victim was surrounded by the defendants, she was affected and felt incapable of reacting,” Rodriguez said, calling for 18 years jail for each defendants, with an extra two for the one who stole the mobile.
“She adopted an attitude of submission, not consent.”
Defence lawyer Agustin Martinez has previously disagreed, calling for the men to be acquitted, arguing the sexual relations were consensual and denouncing the media glare surrounding the case.
– Previous discrepancies –
The April 2018 sentence had already been upheld on appeal at the high court of the northern Navarra region where Pamplona is located.
It said there had been no proof of violence, and that it was too difficult to discern whether intimidation had taken place given the lack of obvious show of force or threats towards the victim.
But two out of five of the male judges disagreed.
They called the assault “an act of intimidation and coercion created by all of them, laying a trap for the victim given the near-zero possibility she had of escaping”.
The two judges said it was rape based also on the “degrading” acts inflicted on the victims.