The Supreme Court Prosecutor’s Office has reported in favor of the Criminal Chamber applying the ‘law of only yes is yes’ to three young people convicted as perpetrators of a group sexual assault perpetrated in September 2016 in Badajoz and for which each one of them to 13 and a half years in jail.
The Criminal Chamber, which now has to resolve the appeals filed by the convicted, asked the prosecutor, the only accusing party, if the Organic Law of Comprehensive Guarantee of Sexual Freedom has any incidence in that case.
“It is clear that the new regulations are more favorable for the now damned”, the prosecutor has responded in a letter known to EL ESPAÑOL. In it he explains that, with the law promoted by the Minister of Equality, Irene Montero, “the ground of the sentence is much lower than the 13 years and 6 months imposed in the sentence that applied the now repealed regulation.”
[El TS eleva las penas a ‘la manada’ de Sabadell con la ley anterior al ‘sí es sí’ por “intimidar” a la víctima]
The “repealed regulation” is the classification of sexual crimes in force until October 7, the contemptuous call by the leaders of the Ministry of Equality ‘Penal Code of the herd’.
That Code made it possible to aggravate the sentence in the case of ‘la manada’ from Sanfermines and also, more recently, in the case of ‘la manada’ from Sabadell.
With the ‘only yes is yes’ law, on the other hand, the members of the Badajoz ‘pack’ could see their sentences reduced if the thesis of the High Court Prosecutor’s Office prospers.
The three men, born in 1991, were convicted of the rape of a young woman with whom they met at dawn on September 26, 2016 in a Badajoz pub-disco.
According to the stolen facts, the victim “had abundantly consumed alcoholic beverages.” The defendants, “noticing the state of drunkenness, confusion and disorientation” of the woman and “taking advantage” of these conditions “compelled her to accompany them, shoving her to the bottom of a garage access ramp I sit in the same urbanization”.
There “they stripped her of her clothes, leaving her completely naked” and “they cornered her between the three of them, grabbing her by the neck and arms and bending her by bending her back.”
In these circumstances and under this coercion, they addressed her with expressions such as “why do you think we came here”, accusing her that they had spent all the money for her to smoke and drink and telling her “come on, you’re going to suck the three”.
The defendants “forced her against her will to perform fellatio on the three of them, thus getting to introduce their penises into the victim’s mouth thanks to the fact that the other two defendants grabbed and held her, while the third introduced his virile member into the mouth of the victim.” the victim, taking turns for this purpose”.
The woman suffered ecchymotic bruises in different parts of the body and post-traumatic stress as a result of these events.
a neighbor’s video
Alerted by a neighbor’s call, around 05:20 hours, police officers found the victim completely naked, on her knees and leaning against the garage door. The three assailants had their pants unbuttoned and two of them had their shirts open.
The evidence provided by that neighbor was decisive. The man stated that he was asleep but woke up when he heard a disturbance in the square in front of which he resides.
He saw three men accompanying a woman “and one of them put his hand into her pants up her ass.” The young woman “had lost her will, as if she were a rag. One or the other was holding her because she walked like a wimp, she was like a zombie, like a rag.”
He added that he heard one of the men say “how do you think you’re going home? You’re going to eat us! You’re going to suck me now!” When she said that she was leaving, they told her: “You’re going to suck us now!”. The neighbor immediately called the police and began recording the events with his cell phone, later handing that recording over to the agents.
[El ‘sí es sí’ ha excarcelado a 74 agresores sexuales y PSOE y Podemos siguen sin pactar su reforma]
Both the Badajoz Provincial Court and later the Extremadura Superior Court of Justice described the events as a rape with two aggravating circumstances (having been committed by more than two aggressors and the special vulnerability of the victim) and a mitigating factor (undue delays in the process, which lasted five years until the judgment was handed down in the first instance).
The fork of penalty according to the regulation of sexual crimes in force at the time of the events was 12 to 15 years in prison which, due to the aggravating circumstances, should be applied in its upper half: from 13 years, 6 months and 1 day to 15 years in prison.
Within that extension, the judges opted for the minimum range to attend a simple extenuation and sentenced each of the aggressors to 13 and a half years in prison.
The Prosecutor of the Supreme Court indicates in its brief that, with the ‘only yes is yes’ law, the penalty for this conduct has gone from 7 years to 15 years in prison. And the top half of it now ranges from 11 years and 1 day to 15 years.
“Within this extension, it must be imposed in its lower half due to the concurrence of an attenuation, resulting in a penological arc of 11 years and 1 day to 13 years in prison,” he explains.
The prosecutor considers the penological modification “mandatory” “imposed by article 2.2 of the Penal Code, since the retroactivity of the criminal law most favorable to the accused must be applied under more beneficial subsequent law”.
However, “being aware that the minimum taxable time is 11 years and a day in prison”, the prosecutor asks that the penalty to be imposed on each of the members of ‘la manada’ from Badajoz be 12 years and 11 months in prison.
For this, it is based on the fact that this procedure involves an “adaptation” of the sentence, not a revision, and that the circumstances of the crime must be taken into account: the number of aggressors; the state of drunkenness, confusion and disorientation in which the woman was found; the serious episodes that preceded her sexual assault by ‘pushing her to a garage’ and the injuries suffered by the victim.
“All these circumstances, which far exceed any minimum and basic form of violence or intimidation, are expressive by themselves, without the need for other additions, of the extreme seriousness of the violations carried out by the now appellants”, considers the Public Prosecutor’s Office, which adds that “the acts carried out in this way should have been subject to a criminal classification of greater criminal proportions and, consequently, punitive”.
The prosecutor of the Supreme Court refers to the fact that the Prosecutor’s Office of the Provincial Court of Badajoz lowered -incorrectly- his final accusation in the final phase of the trial. The initial accusation was for three crimes of rape for which its three material authors would answer and, in addition, the remaining prosecuted as necessary collaborators of the crimes committed by the co-defendants. But the final qualification was a single consummated crime of sexual assault (plus an attempted vaginal penetration by one of the defendants, which the Court did not consider proven).
Although both the High Court and the TSJ considered that he should have been accused of three consummated crimes and not just one, the judges were subject to the final qualification of the prosecutor by virtue of the accusatory principle.
The Supreme Court Prosecutor’s Office now requests that, in addition to the prison sentence, the three defendants be imposed the special disqualification for any profession, trade or activities, whether or not they are paid, that involves regular and direct contact with minors, for a period of 15 years greater than the custodial sentence finally imposed.
It argues, in this regard, that the application of the Organic Law for the Comprehensive Guarantee of Sexual Freedom “must be as a whole” and, “if the prison sentence is reduced, the accessory” of disqualification that the new regulation must also apply of sexual offenses foreseen.
[El ‘sí es sí’ rebaja 7 años la condena al hombre que violó a punta de navaja a una turista desorientada]
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