In the Spanish case of the so called "Manada de Manresa" case is questionable if one can be sentenced of a rape made without using violence or threat.
The judgment of the Navarra Superior Court of Justice, issued on 30 November 2018, concerns the appeals – filed by the defendants and by the Prosecutor – against the first instance judgment rendered by the Audiencia Provincial of the same region, on 20 March 2018, about the case of group sexual abuse perpetrated on 7 July 2016 known as "la Manada case". The Spanish Supreme Court of cassation will assess if rape occurred (the Prosecutor already announced an appeal against the second instance decision): in this "second chapter of la Manada case" a majority of three judges of the panel clearly concluded that a sexual abuse to the detriment of the victim took place, while the remaining two judges in their dissenting opinion strongly affirmed that a proper rape was perpetrated, so embracing the idea of background intimidation sustained by the victim's defence counsel as well as by the feminist movement since the very beginning of the criminal proceedings
The first instance judgment in re La Manada, still subject to judicial review and already discussed by prominent scholars in this blog, puts on the table the question of a possible reform of the sex crimes in Spain. In this post the author examines some reasonable, and some less reasonable, reform proposals.
In the early hours of 7 July 2016, five strong young men aged between 23 and 28 had sex with a 18 years old girl they had just met. This case arouse great social condemnation and an in-depth legal debate to understand if the girl agreed to have sex, or rather the five guys assaulted her and committed a group sex offence. Such facts induced the Spanish legislator to consider a reform of the criminal code, nowadays distinguishing between sex assault (by means of violence or threats under articles 178 and 179) and a less serious sex abuse (perpetrated without the said means, under article 181), similarly to the sex crime provided for by article 609-bis of the Italian criminal code.
The case "La Manada", a group sexual assault on a young woman during the Festival of San Fermin in Pamplona, triggered a huge debate about sex offences in Spain, as well as protests and feminist mobilisation. This paper analyses the facts and the legal reasoning of the first instance judgment, pointing out the reasons for a thorough reform of the crimes at issue.
This article is based on an academic, as well as statistical, analysis of all the Italian Supreme Court's 2015 sentences concerning the offence of rape (art. 609-bis c.p.) in which the previous convictions have been confirmed (after the rejection of the defendants' appeals). However, the research is mainly focused on the 110 decisions (out of a total of 340) in which both the exact penalty inflicted and the details of the criminal conduct concretely committed are clearly reported. The 'traditional' investigation on the Court's interpretation of the elements of the offence has shown no particular innovations as far as the central notions of “sexual act” and “coercive violence” are concerned. Some developments, instead, have been observed in the concept of “psychological inferiority”, which has been expanded again, disconnecting it from the rigid medical-psychiatric parameters (with the real risk of infringing the principle of legality): this is of course to provide vulnerable subjects with a stronger protection. The most relevant results of the analysis have undoubtedly been those related to the exercise of judicial discretion with regards to sentencing. As far as sentencing is concerned, the Italian Supreme Court has very limited power, since the power of deciding the actual duration of convicts' penalties lies with the Tribunals and Appellate Courts' hands. The investigation has shown endemic discrepancies concerning penalties inflicted for similar conducts by different courts, as well as too lenient penalties, especially in cases of rape and paedophilia. In conclusion, there is a clear violation of a principle - yet to be expounded upon by scholars - that we could denominate “sentencing legality”.
È configurabile una violenza sessuale quando il soggetto passivo venga indotto all’atto sessuale mediante una condotta ingannatoria? Le sentenze di merito qui commentate forniscono lo spunto per una ricostruzione del complesso dibattito dottrinale e giurisprudenziale sull’art. 609-bis co. 2 c.p., sullo sfondo di una ricca casistica che comprende ipotesi boccaccesche, come quelle di finti ginecologi e odontoiatri (!) che inducono le rispettive pazienti a compiere atti sessuali a fini asseritamente terapeutici, o quelle di “maghi” che convincono le clienti a rapporti sessuali con lo scopo di vincere il malocchio. Le peculiarità del caso di specie (nel quale l’imputato – attribuendosi falsamente la qualifica di responsabile di un’agenzia di moda – aveva proposto ad una ragazza quindicenne, mediante messaggi su Facebook, rapporti sessuali in cambio di un futuro da modella, senza tuttavia riuscire nel proprio intento) costituiscono altresì lo spunto per interrogarsi sulla questione, altrettanto delicata, della soglia cronologica a partire dalla quale può essere ravvisata una violenza sessuale tentata, anche alla luce del nuovo dato normativo rappresentato dal delitto di adescamento di minorenne, di cui all’art. 609 undecies c.p.