The violation group to a teenager of 14 years in Manresa is not sexual assault, but sexual abuse. Section 22 of the court of Barcelona has sentenced five of the six defendants to prison sentences of between 10 and 12 years for sexual assault and continuous sexual abuse of a minor, but does not provide, as requested by the office of the Prosecutor, raise the penalty to sexual assault. The call pack of Manresa raped turns the victim, who had taken alcohol and drugs and was unconscious, in an abandoned factory on the way Torres d in Vineyards during a botellón in 2016. The court admits that the crime was “extremely intense, and especially degrading”, but you can’t criminalize as sexual assault because the child was unconscious and there was no violence or intimidation, elements necessary to catalog the events as sexual assault. The young man was unconscious and the attackers, reads the sentence, “were able to carry out the acts without the use of any type of violence or intimidation to overcome an opposition that did not exist”.

In the sessions of the trial, held in July, the victim stated that he remembered only part of what happened, but that one of the main accused, Bryan Andrew —the one that started the chain of violations by turns of 15 minutes— and forced to have sex while you wielded a gun. The case is reminiscent of The Herd of Pamplona, when the first two instances were sexual abuse and non-aggression for the violation group of a young woman in the sanfermines 2016, sentences that were rectified by the Supreme Court last June.

The young man stated in court that one of the defendants, Bryan Andrew, said that he had to make a fellatio to him and Maikel Pascual, another of those implicated in the crime. The young man said that he agreed because Maikel and Bryan spent a gun and they felt intimidated. However, the Court does not contemplate, among the proven facts, using the gun to intimidate the victim. The judges hold that you cannot know “with certainty if whatever the víctica said it was recalling about what happened, the flashes of ciertes scenes that you mentioned, are indeed a remembrance of late sensory perceptions retained in memory or the result of the internalization of the story make sense for other people”.

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The Court considers that it is, unequivocally, a crime of sexual abuse. “It has been demonstrated that the victim, while producing the facts, and from the time before until hours after it happened, was in a state of unconsciousness, not knowing what it was and what it did not, and, consequently, without being able to determine and accept or refuse sexual relations with her remained the greater part of the appellants, which were able to perform the sex acts without the use of any type of violence or intimidation, ( … ). You are faced with the hypothesis that considers sexual abuse, non-consensual, although in this case the consent would be irrelevant considering the age of the victim,” said the court in its judgment, that is not firm.

The Prosecutor’s office, which began accusing the perpetrators of a crime of sexual abuse, ended up rectifying and, in the last session of the trial, raised the demand of penalty for the six defendants: between 10 and 12 years for each one of them, he went on to request between 14 and 15 years for sexual assault. The prosecutor considered that the six accused men acted in an organized way and that they took advantage of their numerical superiority to “intimidate” the victim. The judges have not overlooked this change of position of the office of the Prosecutor and, in the failure, have shown their “surprise”, by the modification of legal qualification of the prosecutor’s office in its conclusions, because the test is practiced in the plenary session supported the interim qualification of sexual abuse and, in contrast, did not provide elements that could justify mutate the abuses in sexual assault, in proceedings of conclusions”.

On the age of the victim —was 14 years old when the incident occurred, the Court rejects the statement of the accused, who claimed that they did not know was a minor. “At the oral proceedings, held three years after the facts, the Court has been able to verify that the physical appearance of that girl still looks a teenager, incipient, that would not arrive even at the age of 16,” reads the statement. The judges are incisive: “If you did not do anything to make sure of this fact was because I was an indifferent”.

The court has imposed for two of the accused to a sentence higher (12 years) than the rest, considering that in their specific cases are given a situation of continuity where, being them two with the young girl in the same scene, she was asked to “provide sex”. It has also acquitted two other young people judged by these facts. In one of the cases, it has not been accredited their involvement in the crime of sexual abuse. On the other, that according to the account of the Prosecutor’s office committed the secret habit as he watched the others raped the girl, although not directly involved, has considered that it has not been tested for the offence of omission to prevent criminal offences of which he was accused. The chamber acquits all defendants of the crime of threats.

The room set at 12,000 euros compensation to the victim, jointly and severally, to consider that “the attack on the sexual indemnity of the victim was extremely intense, and especially demeaning, and in addition, there was about a child who was in a situation of helplessness”.

This sentence reminds the case of The Herd of Pamplona, which was controversial for the same reason. First, the Hearing of Navarre and after the high Court of Justice of Navarre was sentenced to the five authors of the rape of a young man to nine years in prison for sexual abuse and not by aggression. The judges of both instances understood that there was no violence or intimidation in the assault despite the fact that the accused forced the victim to get in a portal where it penetrated. Both rulings generated a multitude of protests throughout Spain, the political parties demonstrated against the court decision and even the Government announced that it would amend the legislation.

The decision was appealed to the Supreme Court, which changed the qualification of the facts, and raised the penalties. Ruled that The Herd committed a continuing violation in a group and punished the five perpetrators of rape to 15 years in prison. The high court understood that the young man suffered a “intimidating” that made qeu itself “to adopt an attitude of submission, doing what the authors were saying that you did before the anxiety and intense distress that the situation caused by the rather remote, narrow, and without an exit in which he was introduced to the force”. The defendants “took advantage” of these circumstances to attack the young man, who saw at least “ten sexual assaults with penetration oral, vaginal and anal,” he said. The Supreme court applied two aggravating circumstances, one for the treatment of vexing and another by the joint action of two or more people.

The sentence about the attack of The Herd of Pamplona in July of 2016 generated extensive protest on the streets and caused the Government, then the people’s Party, decided to review the concept of violence contained in the Penal Code for rape cases. The Government of the PSOE endorsed the initiative of the PP and, in July of 2018, announced a reform of the Penal Code and the Criminal procedure Law to ensure that types do not depend on the interpretation of the judges. The coding commission, tasked with an opinion on the issue, suggested the disappearance of the current distinction between abuse and rape, and that is considered rape, any sexual assault with penetration non-consensual.

This committee was composed initially by 20 men and, over the protests of experts and jurists, ended by modifying their composition to house 15 women and 13 men. The main recommendations which he sent out in December of 2018 to the Government were: the disappearance of the term sexual abuse, punishment for which they were sentenced the members of The Herd of Pamplona and Manresa; that all the crimes against sexual freedom are under the heading of sexual assault”; and all the penalties for sexual assault are maintained and adjusted by clarifying the current text. The Government has not yet undertaken the reform.

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