Refusing a Breathalyzer Test: Legal Consequences
November 27, 2024
Supreme Court upholds conviction for animal abuse
April 16, 2025
- As we anticipated in our analysis, the recent judgment confirms that the nature of the facts does not justify the imposition of a prison sentence, opting instead for a financial penalty. (ABC, El PAÍS,LA VANGUARDIA)
The case of Jennifer Hermoso, a professional soccer player and leading figure in Spanish women's soccer, has generated intense debate in the legal-criminal field, especially with regard to crimes against sexual freedom and indemnity, consent and personal integrity. This case, which has transcended the sporting sphere to become an issue of social and legal relevance, raises fundamental questions about the interpretation of consent, the nature of the conduct and the criminal liability of those involved.
Case Background
Jennifer Hermoso, one of the players of the Spanish women's national soccer team, was the protagonist of an incident that occurred in the context of the celebration for having won the Women's World Cup. According to the reported facts, Hermoso was the object of a non-consensual act by Luis Rubiales, then president of the Spanish Football Federation, when he grabbed the player's face with both hands and kissed her on the lips without her consent, which generated an immediate reaction in both the sporting and media spheres. The incident, which was caught on camera and widely disseminated on social networks, triggered a wave of indignation and a public debate on the limits of consent and respect for personal integrity.
After several videos that were spread through social networks due to the incident involving the manager, the day after Luis Rubiales apologized for what happened: "I'm sorry.Everything that has happened between me and a player, with a magnificent relationship between us, as well as with others, and where, well, surely, I have been wrong. I have to admit it, because in a moment of maximum effusivity, without any bad feeling
intention, without any bad faith, it happened what happened, very spontaneously, without bad faith, by either party."
On August 25, Jenni Hermoso denied Luis Rubiales in a statement with these words: "I want to clarify that, as was seen in the images, at no time did I consent to the kiss he gave me and, of course, in no case did I seek to lift up the president.
Consent and the nature of the conduct in Spanish Criminal Law
These statements by the player leave the door open to analyze a fundamental aspect of the crime of sexual assault: consent.
In Spanish Criminal Law, consent is (and has always been, as we have seen in other articles in this blog) a central element in the configuration of crimes against sexual freedom and indemnity. However, for these crimes to be applied, it is necessary that the conduct in question has a sexual character. This aspect is crucial in the case of Jennifer Hermoso, since there are doubts as to whether the act performed by the alleged aggressor can be qualified as sexual in nature.
Article 178 of the Spanish Penal Code defines the crime of sexual assault as follows ".Anyone who performs any act that infringes on the sexual freedom of another person without that person's consent shall be punished by imprisonment for a term of one to four years as a perpetrator of sexual assault. Consent shall only be understood to exist when it has been freely manifested through acts which, in view of the circumstances of the case, clearly express the will of the person concerned. ".
However, for a conduct to be considered sexual, it must be related to the intimate sphere of the person and have a clearly sexual connotation. In this sense, the legal analysis must determine whether the act in question meets these requirements or whether, on the contrary, it is a conduct of a different nature.
In this case, the accusations request for Rubiales a sentence of one year in prison for this crime and also request that he compensate the international footballer with 50,000 euros (the same amount that the other defendants are asked to assume jointly and severally), that the former president of the RFEF be placed under probation for two years once he has served his sentence and that he be prohibited from communicating with Jenni Hermoso and from coming within 200 meters of her for four years (three and a half years in the case of the other three defendants). In addition, the prosecutor demands that he be disqualified from practicing his profession and from exercising his right to passive suffrage for a period equal to that of the sentence.
Legal analysis of the case
In the case of Jennifer Hermoso, the legal analysis must therefore focus on two key aspects: the existence or not of consent and the nature of the alleged aggressor's conduct.
According to the testimonies and images available, the lack of consent seems obvious, and Hermoso has clearly stated that he did not consent to the act in question. This statement is fundamental to determine the criminal liability of the implicated, since, under the "Solo Sí es Sí Law", the absence of consent is sufficient to configure the crime. However, during the first statements, the defense even insinuated that Hermoso could have given his consent verbally or gesturally during the act, although this position has been strongly questioned by the prosecution and the public opinion.
However, in my view it is equally important to analyze whether the conduct of the alleged aggressor can be qualified as sexual. Rubiales' defense will try to demonstrate that the act did not have a sexual connotation, but rather that it was an impulsive or even jocular action in the context of a sports celebration; in this type of context, it is common for gestures of joy or effusiveness to occur that should not be interpreted as aggression. In addition to this, it is pointed out that the act was public and not hidden, which, according to their perspective, reinforces the idea that there was no intention of committing a crime, trying to present the fact as a misunderstanding or excess of effusiveness, rather than as a premeditated aggression with the intention of causing harm.
The accusations, on the contrary, argue that the act violated Hermoso's privacy and dignity, which would give it a sexual character and that the festive context does not justify non-consensual conduct.
This discussion will be crucial during the trial, as it will determine whether the act can be classified as a crime against sexual freedom or whether, on the contrary, it should be approached from another legal perspective, which would lead to the acquittal of the defendant.
In any case, it must be taken into account that paragraph 4 of art 178 of the CP states that "The sentencing body, reasoning it in the sentence and provided that there is no violence or intimidation or that the victim has annulled for any reason his will or the circumstances of article 180 (specific aggravating circumstances), may impose a prison sentence in its lower half or a fine of 18 to 24 months, taking into account the minor nature of the act and the personal circumstances of the offender". And taking into account the facts that are being prosecuted, it seems to me a much fairer penalty in the case of a conviction, since the fact, despite having become a media bomb, could be described as "less serious" because it was only a kiss.
