The Supreme Court reduces the prison sentence of a sexual offender from 12 to 10 years by applying the law of 'only yes is yes'

The Prosecutor's Office asked to maintain the 12 years, but the court explains that the man was given the minimum sentence, which is now 10 years

MADRID, 23 Dic. (EUROPA PRESS) -

The Supreme Court has reduced from 12 to 10 years in prison the sentence imposed on a man for the crime of sexual assault on a minor under 16 years of age in Almería by applying the law of 'only if it is yes' because it is more beneficial for the prisoner . It is the fourth reduction that the High Court has issued since the reform of the Penal Code entered into force.

The magistrates have explained that the proven facts now fit without any room for discussion in the new article on sexual assault, which is punishable by a sentence ranging between 10 and 15 years. The Prosecutor's Office asked to maintain the 12 years in prison, but the court recalled that during the trial "all those involved (...) ruled out reasons that justified a penalty that exceeded the legal minimum", then set at those 12 years.

Thus, the Supreme Court has concluded that what corresponds now is to apply the minimum sentence --set at 10 years-- imposed by the Criminal Code after the reform promoted by the Ministry of Equality through the Organic Law of Comprehensive Guarantee of Freedom Sexual.

In a sentence, to which Europa Press has had access, the court has partially upheld the appeal of the convicted person and has reduced the sentence imposed by the Provincial Court of Almería from 12 to 10 years -- and later confirmed by the Superior Court of Justice (TSJ) of Andalusia--.

On the sidelines, the magistrates have specified 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, because it corresponds to the minimum established by law after the reform.

The Supreme Court has also agreed to maintain the probation measure, in this case for a period of 10 years, since it has not changed with the current regulation either.

In the ruling, for which Judge Ana Ferrer has been a rapporteur, the court has indicated that the entry into force of the 'only yes is yes' law "forces 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".

The magistrates have recalled that it is not for the Supreme Court to make a "new determination of the sentence" or reassess the facts that have already been considered proven to "detect a greater or lesser reproach" of the defendant's actions.

Thus, the Supreme Court has endorsed the conclusions reached by the Andalusian Supreme Court, but has stressed that if at that time the minimum penalty included in the criminal fork was applied, now it must also be done, which translates into a reduction after the change of the Penal Code.

In this case, the facts date back to April 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 the I was going to take him home.

According to the sentence, the minor refused at first, but finally agreed to be a person she knew from the town. Later, the convicted person moved to a field and committed the sexual assault.

"Once the sexual act was performed, the defendant told the minor not to tell anyone what had happened; transferring her back to Campohermoso and leaving her in the area of ​​the town's Institutes," the resolution states.