In the words of the majority decision of the court, the 18-year old woman was "crouching down", "shouting" and "moaning in pain", "terrified" and "boxed in", "subject to the will" of her five attackers, in a cramped three-square-metre space, "without an exit". She was "penetrated in the mouth" by all five, in the vagina by two, one of whom repeated the crime, and anally by another. One video, said the judges, "well illustrates in our consideration the clear reality of the situation […] the victim is subject to the will of the [five] accused, who use her as a mere object, to satisfy on her their sexual instincts".
Any woman subjected to such a horrifying ordeal, or listening to a broken, sobbing friend tell her story, would describe those events as rape. But under Spanish law, legally, the five accused were found guilty of a lesser crime, sexual abuse, and each sentenced to nine years in jail. Rape as a specific crime in the 1995 Spanish Criminal Code is only present in the expression "will be punished as a prisoner for rape to a prison sentence of between six and twelve years", contained in Article 179 of the code. It is a category of sexual assault, and sexual assaults in Spain require judges to find "violence or intimidation". Despite the judges' own words describing a most intimidating situation for the young woman, they found that, according to the legal definitions, no violence or intimidation could be proven, and therefore there was no crime of rape.
Amnesty International in Spain said on Thursday that only nine jurisdictions (out of 33) in the European Union define rape based on the lack of consent to intercourse. Among them are England and Wales, where Crown Prosecution Service guidelines describe rape as penetration with a penis without consent, and that the attacker "does not reasonably believe" that the victim consents. The day after the wolf-pack judgement was published, several Spanish MEPs registered questions with the European Commission regarding the Istanbul Convention—on violence against women and domestic violence—and whether or not the Commission would move to encourage countries to adopt rape definitions based on consent.
The Justice Ministry in Spain said on Friday, in response to the outrage across the country, that it would ask its legal services to see whether or not sexual assault crimes are "conveniently reflected" in the 1995 Criminal Code "or if they need updating". The Public Prosecutor's Office in Navarra announced it would appeal the judgement because it still thought there was a case for rape, not sexual abuse.
The judges in Navarra described a most sickening and intimidating gang rape—the victim is still suffering from post-traumatic stress disorder (PTSD) and undergoing psychological treatment. Beyond lay incomprehension of the legal definitions and technicalities, or the intricacies of how the Supreme Court has interpreted the Spanish Criminal Code over the years—which experienced legal commentators struggled, mostly in vain, to explain on TV, the radio or social media—there is the question of what the crime should centre on: should rape only be about penetration without consent or must there be proof, as in Spain at present, of the use of violence or intimidation, in the specific legal sense of those concepts?
Women across the country on Thursday instinctively knew the answer to that question. Most of the negative reaction can be explained by the dissonance between the judges' simple description of the victim's ordeal and their legal conclusion that it did not, under current Spanish law, constitute rape. 24 million Spanish women deserve an answer to this question. MPs should move to update the 1995 Criminal Code so that the legal definition of rape is in line with common sense and the Istanbul Convention.
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