The court that mistrusts sexual assault victims

BarcelonaThe High Court of Justice of Catalonia (TSJC) annulled a sentence of the third section of the Girona High Court in which three magistrates dismissed the sexual abuse with penetration of a 21-year-old boy to a 12-year-old girl. The judges did not believe the girl's story and, after the correction of the TSJC, when they had to re-evaluate the facts and write a new sentence, they continued thinking the same.

The TSJC considered the result of the judges' assessment to be "illogical", as they departed "unjustifiably from scientific knowledge". This correction led Ildefonso Carol, president of the third section and rapporteur of the first acquittal, to argue a second sentence charging against the TSJC. "What does concern us is that, in cases arising from a complaint by a woman against a man, this type of blunt disqualifications, when they come from a court of such importance, may come to give ammunition to the voices that, by many influential opinion makers and for some time now have been trying to give a self-serving misinterpretation to what has been called gender perspective", says the text, which calls into question the "secondary victimisation" that implies that a victim of sexual abuse has to testify repeatedly.

Carol supports the basis of the sentence in the "contradictions" of the girl's story, who had to explain the facts multiple times between the ages of 12 and 15. And he uses irony to attack the TSJC. "We understand that the error suffered by the court is perfectly understandable, and could very well have happened to us: it is not easy to stay the course when the boat is in the middle of a veritable ocean of what the court calls "divergences" and we call "contradictions"," he says.

The position defended by the magistrates of Girona disagrees with the guide of good practices for victims of gender violence of the General Council of the Judiciary, which specifies that they should not be questioned. According to the third section of the Court of Girona, this thesis would leave very little room for the discretion of the examining magistrate.

However, the case of the 12-year-old girl is not an exception. Far from it. The ARA has analysed around forty sentences, which are the vast majority of those handed down by the third section for sexual violence over the last three years (collected by the media or published in the judicial documentation centre). Acquittals abound above all: 21 - there are three more from the same period that have been left out because the accusation was not assessed for procedural reasons. There are 11 convictions by agreements of conformity; that is, that the author recognises the facts and in exchange there is a substantial reduction of the years of imprisonment - and only 7 convictions. In most cases, the story of the magistrates is the same: they do not believe the victim.

The statement is not enough

The majority of sentences in the third section cite the jurisprudence of the Supreme Court, which states that in "crimes of a sexual nature it is unanimous to consider that the statement of the victim of the crime, despite being the only evidence, is sufficient to destroy the presumption of innocence of the accused". This statement of the victim has to pass a "credibility test" and a second filter that they call "veracity test". The judges of the third section speak of "destroying" the presumption of innocence, while in Lleida they speak of "distorting" or in Tarragona of "distorting" or "enervating", like their colleagues in the other criminal section of the Girona Court, the fourth, who also use "enervating" (in Spanish, in the sense of weakening). But in one sentence, the third, it goes so far as to argue that "the mere statement of the complainant is not enough to support a conviction, however convincing it may be", and "some external objective corroboration" is required.

No credibility

In this last sentence, a candy seller in Hostalric was acquitted because the eight girls between 8 and 12 years old who denounced him "exaggerated" that the man was "too effusive with the customers". He was facing 45 years in prison but the court does not believe the minors. It also charges against the specialists who had attended them: "Although we are not psychologists, all the members of the court have had children, and the attitude of the minor seemed to us more like that of a child who is making his imagination work, an extreme that the psychologists did not appreciate".

In another trial, a man who was facing 10 years in prison for raping a girl in the toilets of a night club in Sils was acquitted. Penetration is taken as proven, because the victim suffered injuries that made her bleed, but the court concludes that it was not proven that the injuries were "caused intentionally by the accused", since they could be compatible with an assault but also with "a penetration without due preparation, brutal if you will, in a forced position". Faced with two versions, criminal law "does not consist of a game of hypotheses or of determining which is the most probable", argued Judge Juan Mora.

Judge Manuel Ignacio Marcello is the rapporteur of another sentence that acquitted a man who faced 10 years in prison for attempting to sexually assault his 9-year-old nephew. To argue this he alleges "nuclear discordances" in the child's statement. Despite the fact that the boy's sister, also a minor, had testified that she had seen the attempted sexual assault, it is not taken into account in sentencing.

The paradox is that the court does use the children's words, but to rule out the crime of injury, for which the man was also charged. It assures that "the assertions of the minors", who denied that their uncle had hit them, "take on special significance". Even the judge admits that the exculpatory version of the accused does not deserve "credibility". But in the end he says that he sees "evidentiary uncertainty" and, as he has "serious doubts", he takes refuge in the principle of in dubio pro reo -in favour of the defendant - to acquit him.

In another sentence, the third section acquitted the defendant who was facing 11 years in prison for sexually assaulting his mother-in-law's caregiver because of "the vagueness and inconsistency" of the victim's statement. The hospital activated the sexual assault protocol when it attended to the woman because she had a compatible injury even though it was not determinative. But the court does not see "coherent" that in the trial she avoided repeating "the details" that she had said in the instruction phase and rules out that it is by "humiliation or shame". "Nor does it seem feasible that she has forgotten them", it adds. The accused refused to testify at the trial and did not answer any questions.

The convictions

Of the seven convictions in the third section, only two stand on the victim's account, without the need for additional evidence. In the others, the sentence is inculpatory because the accused corroborates the facts - despite the fact that the sentence is not based on conformity - or because there is graphic evidence or messages that prove what happened. In one of these cases, in which a leisure instructor is sentenced to 11 years in prison for abusing a minor, Carol makes a particular vote in which he regrets that it is more "expensive" to sexually assault than to murder and asks for a partial pardon to reduce the sentence to three years. "It may be a paradox that in our country it is, in criminal terms, "cheaper" to kill a 16-year-old than to have consensual sexual relations, even if it is a consent vitiated by age and through prevalence", he says.

The tone of the third section contrasts with the arguments of the other criminal section of the Audiencia de Girona, the fourth, because in an acquittal the judges admit that they are "aware" that "the reactions of the victims of very serious crimes are not always welcome" in the evidence that can be made in the trial, "and so there are behaviors that generate evidentiary gaps" that hinder the conviction.

The third section of the Audiencia of Girona is formed by five magistrates: two women and three men. This week, precisely, in one of the seven sentences, a substitute magistrate introduced a hitherto unusual sensitivity warning in the text of "obvious deficits in sex education" in the context of "a predominantly macho culture".