The FGE wants victims of sexual assaults to only testify in investigation, saving them the trial

Experts point out that the judge or court will have the last word, and the rule is that those of legal age must go to trial.

The State Attorney General, Álvaro García Ortiz, is preparing a circular that will be transferred to all members of the Public Ministry in which he will advocate that the statement made by the victim of sexual assault during the investigation be considered as pre-constituted evidence.

This would make it possible for the victims not to have to testify twice, the second time before a court, and could avoid cases of compliance such as the one that saved two Malaga police officers from going to jail this summer.

According to tax sources consulted by Europa Press, the purpose of the FGE is to prevent those convicted of rape from escaping from entering prison due to those agreements that avoid holding a trial.

They add that in this preparation of the circular on the protection of victims, all the possibilities and tools for protection and prevention of secondary victimization are being studied and analyzed, including this preconstituted test.

They recall that García Ortiz already announced in his appearance in Congress that he wanted to "explore all possible aspects of victim protection to give prosecutors a comprehensive legal tool to achieve these objectives."

"The victims must be protected and defended. Their role in the process, when in addition their testimony is essential for the prosecution of crimes, should not mean a burden, a violent or heartbreaking element for them. It is not the victims who are they have to adapt to the process or to justice, we are the ones who have to adapt to them," he said then.

After knowing the intention of the FGE, tax sources explain to Europa Press that the circular in any case only guides prosecutors and, although "it is good because it unifies criteria", the ideal would be to carry out a legal reform because it would give more tools to act in criminal proceedings. Thus, they regret that the FGE proposal will only be a suggestion to the courts, who will be the ones with the last word.

Sources from the Supreme Court consulted by this agency agree that it will ultimately depend on what the judge or court decides, and they have pointed out that despite the fact that the pre-constituted test is already applied to children under 14 years of age after the reform of the 'Organic Law of comprehensive protection for children and adolescents against violence' (LO 8/2021), "for older people, the rule is the opposite". "It is difficult for the preconstituted test to be applied in an ordinary way in older people," they stress.

Thus, other voices explain that while in minors the pre-constituted evidence is almost mandatory because "only exceptionally should the minor go to trial", in majors the jurisprudence "only admits it when there are compelling reasons specific to the case that prevent or discourage the declaration on trial."

They cite as examples the absence due to death or serious illness, or the existence of a medical or psychological report that highlights the serious dysfunction that their testimony would cause. And they add that without that, "the rule is that you have to go to court."