SPAIN'S highest contentious court has overturned a controversial sentence which found five gang-rapists accused of the lesser offence of 'sexual abuse' after they attacked an 18-year-old woman at Pamplona fiestas and filmed her ordeal.
La Manada, or 'The Herd' as the group calls themselves – a street gang with initiation rites and whose members even include a now-struck off Guardia Civil officer – were said to be 'looking for trouble' when they travelled to Navarra for the Sanfermines bull-running festival from their home city of Sevilla in 2016, with recordings of them joking about holding a gun to a Basque person's head and forcing him to sing his regional anthem in Castilian Spanish.
They found Clara, 18, from Madrid, very drunk and lost, and offered to walk her back to her hotel, but en route, they led her into the foyer of a block of flats and took it in turns to rape her whilst filming her.
One of the men stole her mobile phone, saying he did so 'because he liked it', but which the Supreme Court judge considers also left her additionally vulnerable as she was unable to call for help.
Controversy surrounding the group's initial nine-year sentence for the lesser offence of 'sexual abuse' rather than 20 years for 'rape' found its way around the world, with street protests as far away as Australia and even local county radio stations reporting the verdict in the UK.
An association of lady judges in Spain signed an open letter calling for it to be overturned, saying the leniency of the charges 'set a dangerous precedent' for women across the country.
The magistrates considered that as the victim had not fought back or expressly protested verbally, she was deemed to have consented, meaning it could not be a rape, although women's groups and rape crisis centres across the country said this did not make sense: had it been a consenting act, there would have been no crime at all, not even sexual abuse, but without consent it could only be classed as 'rape' due to the form it took.
Psychologists and gender violence experts also pointed out that a rape victim's 'freezing' or becoming 'passive' and 'playing dead' or being unable to react physically was a normal and very frequent response to such an attack, and strongly objected to the court's claims that as she was drunk, she did not feel any pain, which invalidated the crime.
Police who seized the mobile phone videos described the footage as 'harrowing', and the Supreme Court has now called it 'humiliating' to the victim.
The verdict
Beyond the Supreme Court, there is no further course of appeal in Spain, unless any party to the case considers his or her rights under the Spanish Constitution have been breached, in which case an appeal can be made to the Constitutional Court, whose role is purely that of interpreting the Magna Carta.
As a result, the judge's decision today is final.
The four-page verdict concludes with a 15-year sentence for 'rape' for all of the gang members, with an additional two years, bringing the custodial term up to 17 years, for three of them for 'aggravated robbery' because of Clara's mobile phone theft, including for the material author of this offence, now-ex Guardia Civil officer Antonio Manuel Guerrero Escudero.
According to the judge's report, the facts of the case 'cannot be considered to constitute a crime of sexual abuse' but instead one of 'continuous rape', given that they present 'a truly intimidating scenario' in which the victim 'does not at any moment consent to the sexual acts performed by the accused parties'.
The Supreme Court considers the previous verdict of 'sexual abuse' to be an 'error', since the scenario involved is, more correctly, one of 'multiple acts of sexual assault'.
Aggravating factors include the 'humiliating treatment' of the victim, who was 'penetrated simultaneously by two men at a time', and then suffered the attackers' 'bragging about' their behaviour on the videos they took during the process.
Also, the fact the crimes were committed by a group is an aggravating factor, but that even if it had just been one of them, the judge said, it would still serve to render the crime more serious given the 'age and physical characteristics and the intimidating situation involved', since all five are in their 30s, well-built and very strong, meaning an 18-year-old woman would not have achieved much by trying to fight them off physically and could have endangered herself even further.
The Supreme Court says it has put the issue of consent at the heart of its decision rather than the victim's apparently passive reaction, stressing that her 'attitude of submission' and 'allowing the accused parties to act as they did' was due to the 'anguish and intense feeling of being trapped' as a result of the attackers' number, strength, age, the force involved, and the fact that the crimes happened in a 'remote and confined space' where she was 'cornered with no hope of escape'.
One of the magistrates involved in the earlier, more lenient verdict had even voted for all five to be acquitted of everything except the theft of Clara's mobile phone, claiming the video footage 'showed they were all having a jolly good time'.
But the Supreme Court considers there is absolutely no room for doubt that the girl's ordeal was one of torture, humiliation and terror.
All five had paid €3,000 each in bail to secure their release within days of their initial arrest, although one ended up back behind bars within weeks for stealing a pair of designer sunglasses from a shopping centre, and another was caught trying to renew his passport, so he would still have one available despite being obliged to hand it in to the court.
A huge campaign across Sevilla was launched, with women throughout the city giving posters to shopkeepers, bars and restaurants to put up saying they 'do not serve rapists', and threatening to boycott any premises which did serve La Manada, in a bid to 'freeze them out' and make their lives impossible.
Women's groups, charities, mental health professionals and those who work with rape victims all say the new verdict is very welcome and good news for females across Spain.
As a Supreme Court sentence, it also sets a legal precedent, meaning in any similar case, the verdict and custodial term applied would be automatic.
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