The matter surrounding Luis Rubiales’ non-consensual kiss on player Jennifer Hermoso is given a new scenario, with prosecutors announcing they will file a complaint “as soon as possible” against the suspended president of the Royal Spanish Football Federation (RFEF) as an alleged perpetrator of a crime sexual assault. The movement by the Ministry of Public Health follows the football player’s statement to the Attorney General’s Office, in which she formalized her complaint about this act without consent, elDiario.es exclusively revealed.
Prosecutors are launching investigations into Rubiales for possible sexual assault of Jenni Hermoso
The kiss that Rubiales gave Hermoso on the mouth while holding his head with both hands came on August 20 after the Spanish women’s team triumphed at the World Cup in Australia. The location where the events took place is crucial as it determines who has responsibility for investigating and prosecuting if necessary. The legal sources consulted in this letter agree that “there is no doubt” that the Spanish judiciary has the power to act in this case and that jurisdiction rests with the National Court, i.e. the court to which jurisdiction over criminal offenses is conferred committed outside the national territory. And in this case it is a crime allegedly committed by a Spaniard on a Spanish victim abroad.
The crucial article is 23.2 of the Judiciary Code, which extends Spanish jurisdiction to crimes committed abroad by Spaniards, provided that three conditions are met: that the act is punishable in the place where it was committed, that the victim or the prosecutor lodges a complaint with the Spanish courts, claiming that the perpetrator was not acquitted, pardoned or convicted abroad because of these facts or, if he had been convicted, did not serve his sentence.
The sources consulted claim that in this case all the conditions are met: Rubiales has Spanish nationality, sexual assault is also a crime in the Australian criminal system, prosecutors have announced that they will press charges, but the Australian judiciary has not assessed the facts. They therefore reiterate that there is “no doubt” about the jurisdiction of the Spanish courts.
The Supreme Court has ruled in this regard in several resolutions on comparable facts. In 2016, the Trial Chamber agreed that the national court had jurisdiction to investigate an alleged rape committed by a Spanish student on a Spanish victim while both Erasmus participants were in Ireland. “This is a crime committed by a Spaniard against a Spanish victim abroad. In this situation, the jurisdiction of the national court is clear,” the resolution states.
Years earlier, in 2012, the same chamber had agreed that the National Court was also the competent judicial authority to investigate a Spanish woman’s complaint to her then-husband, also a Spanish national, about an alleged rape in the English city of Nottingham. Despite this being a sexist violence case, the judges noted that jurisdiction did not lie with the Violence Against Women Courts but with the National Court, arguing that this was the only body that had “knowledge of the violence abroad attributed to crimes committed”. .
The possible judicial way
In any event, filing a complaint is only the beginning of the process, which follows the same flow as criminal proceedings committed domestically. Once the complaint has been filed, it goes to one of the six central educational courts of the National Court. Cases are distributed using a computer program that ensures random distribution between the different courts. If the judge finds that there are indications of a criminal offense in the reported facts, this will be approved for processing and an investigation phase will be initiated.
As part of these investigations, both the victim and the attacker would be subpoenaed, and it is customary for the parties to provide the judge with any evidence in their possession to support their allegations, in the case of the victim and the prosecution; or his defense in the case of the attacker. After this investigative phase, the investigating magistrate can close the case if he/she considers that there is no criminal offense or take the matter to court.
Prosecutors have not yet filed their complaint, although Deputy Prosecutor of the National Court Marta Durántez, in the Aug. 28 letter agreeing to the opening of a pre-trial, took into account the statement in which the player declared the kiss “clearly”. was not consensual. And he confirmed that in view of these statements, “the sexual act suffered” by the soccer player “was not consented to” and that they therefore had to be analyzed for their “legal meaning”.
The Attorney General’s letter also cited Supreme Court jurisprudence, which states that “surprise or fleeting touching of erogenous zones merits a criminal charge” or “kisses on the mouth,” but not the so-called ósculos (respect kisses). Affection, according to the Royal Spanish Academy Dictionary).
Since the “Nur ja ist ja” law came into force, “any act that violates the sexual freedom of another person without their consent” is considered sexual assault. In the absence of intimidation, violence, or rescission of the will, these crimes are punishable by imprisonment from one to four years, although the criminal court may impose the lower half (from one year to two and a half years) of imprisonment to a fine of eighteen to twenty-four months , based on “the smallest scale of the offense and the personal circumstances of the perpetrator”.