"It is not possible that the courts, based on a different understanding -legitimate, but which is not for us to carry out- introduce through the window what the legislator has dismissed through the door." With this affirmation, the Supreme Court has maintained that it is unavoidable, in application of the law of only yes is yes, to reduce the sentence imposed on a man for rape from 12 to seven years in prison.
The events occurred in Manresa in July 2019, during a party with drugs and alcohol in an apartment to which the three defendants - the other two did not appeal the sentence - invited the 17-year-old girl. According to the proven facts, the victim, who was greatly affected by the consumption of alcohol and medication, "neither consented to the sexual acts nor was she able to avoid them, trying in all three cases to get rid of the respective aggressor with the few means and forces physics that he had. It was ruled out that the three defendants had collaborated in the violations of the others, which would have increased the sentence.
The was notified the day after the Plenary of the Criminal Chamber agreed to ratify the first downward revisions of firm sentences for sexual assaults as a consequence of the reform of the Penal Code promoted by the Ministry of Equality.
The magistrates consider that this more favorable reform -already repealed- should also be applied in this case. Aggravated rape was the category that saw the minimum sentence reduced the most with the yes is yes law. From 12 to seven years, which is what the Supreme Court transfers to this specific case.
The ruling, for which magistrate Leopoldo Puente has been a rapporteur, explains that the Barcelona Court "resolved, within the punitive framework established by the legislator (who is constitutionally responsible for doing so based on well-considered criteria of proportionality), to impose the penalty in its minimum legally possible extension: then 12 years in prison".
"Maintaining the criteria of judicial individualization of the sentence taken into account by the provincial court", it continues, "it is appropriate to rectify the sentence that was imposed, in view of the later more favorable legal regulation, maintaining it, as agreed, in its minimum extension legally possible: now, seven years in prison".
The high court explains that it has no option to do otherwise: "The assessment in terms of concrete proportionality that corresponds to the courts cannot and must not ignore limits that, based on criteria of rationality (which may, as always, be or not shared) the legislator has established. In other words: if by law it is considered that sexual assault will not necessarily be more serious, deserving of a greater penalty, due to the sole circumstance that violence or intimidation occurs, being possible, also when this happens, impose the minimum sentence that the criminal type establishes (seven years in prison), it is not possible that the courts, based on a different understanding, --legitimate, but which is not up to us to carry out--, introduce by the window what the legislator has dismissed through the door".
The sentence has the support of four magistrates and the particular vote of Judge Susana Polo. In line with the Prosecutor's report, the magistrate understood the new law of yes is yes more favorably, but she defended that what was proportional to the seriousness of the facts was having imposed a sentence of 11 years in prison, not seven.
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