The sentence of a man who sexually assaulted a minor in Níjar (Almería) is reduced to ten years by the 'yes is yes' law

ALMERÍA, 23 Dec. (EUROPA PRESS) -

The Criminal Chamber of the Supreme Court (TS) has reduced the sentence of a man convicted of sexually assaulting a minor under 16 years of age in Níjar (Almería) from 12 to 10 years in prison by applying the new law of comprehensive guarantee of sexual freedom known as the 'law of only yes is yes' for being more beneficial to him.

As reported by the High Court, the events occurred on April 11, 2019 when the convicted man found the young woman, who was 15 years old at the time, on a street in Campohermoso (Almería) and convinced her to get into his car, telling her that He was going to take her home because it was later than 7:00 p.m.

The minor, at first, refused but finally agreed to be a person she knew from the town. The convicted man, identified as C.I.B. and without criminal record, he placed her in the back of the car and moved her to a field on the outskirts of Campohermoso, where once there, he stood next to her and sexually assaulted her "making a gesture of assaulting her" in the face of her resistance. .

Once the sexual act was performed, the defendant told the minor not to tell anyone what had happened; transferring it back to Campohermoso and leaving it in the area of ​​the town's institutes, according to the ruling, consulted by Europa Press.

The Provincial Court of Almería and the Superior Court of Justice of Andalusia sentenced him to 12 years in prison for the crime of rape, which was the legal minimum penalty provided for that crime in the previous law. He also forced the payment of 20,000 euros and ordered a probation measure of ten years.

However, the Supreme Court explains that the proven facts now fit "without room for discussion" in the new article on sexual assault -181. 1, 2 and 3 second paragraph of the Penal Code-, punishable with a sentence that ranges between 10 and 15 years.

It affirms that "as the prosecutor has reported in the transfer that has been given to him, the 12-year sentence is also now taxable, which would mean that it would not be modified in the event that the lower court had raised the sentence over his threshold.

However, it recalls that "it was not like that" and that "all those involved in the process, from their respective perspectives, ruled out reasons that justified a penalty that exceeded the legal minimum. And that conclusion now obliges us to make that normative comparison, precisely from that minimum limit of the custodial sentence".

For the Chamber, "the decrease in the minimum limit for which at the time they opted, not only the prosecution, but also the court without objecting to reasons that, according to their criteria, justified a greater reproach translated into an amount of penalty, determine, as has been The appellant requested the retroactive application of the new norm, now setting the penalty at 10 years in prison".

On the other hand, the court specifies that in this case the sentence to 15 years of special disqualification for profession or trade that involves direct contact with a minor is maintained as it corresponds to the minimum taxable with the new norm. Nor is the probation measure modified, in this case for a period of 10 years, since it has not changed with the current regulation either.

In its ruling, a presentation by Judge Ana Ferrer, the Chamber points out that the entry into force of LO 10/2022 of September 6, on the comprehensive guarantee of sexual freedom, requires a normative comparison to be made in order to determine if the new regulation would be more beneficial to the convicted person, because if so, by application of article 2.2 of the Penal Code it will be retroactively applicable, as has happened in this case.

Remember that it has consolidated a body of doctrine for cases of normative succession, according to which the comparison must be made by comparing both normative schemes en bloc, since only in this way can it be detected which regime is most beneficial for the convicted person.

It adds that the comparison must be made based on the penalty imposed, since it is not up to the Court of Appeal to make a new determination of the penalty by issuing a judgment of proportionality in view of the seriousness of the guilt and the consideration of the circumstances that allow detecting a greater or lesser reproach of the facts.

The control in cassation of the correction of the sentence applied is contracted to the verification of the existence of a reasoning in relation to the exposed factors and that this has not been arbitrary, concludes the Chamber.