The TS rules out lowering the sentence for a man who abused his niece because with the "law of only yes is yes" it would be superior

The Chamber indicates that the new law contemplates a minimum sentence of twelve years and six months "not at all favorable" to the accused

MADRID, 20 Ene. (EUROPA PRESS) -

The Supreme Court (TS) has confirmed the 12-year prison sentence imposed on a man who sexually abused his niece, ruling out reducing the sentence in application of the "only yes is yes law" since, with the new legislation, the sentence would be higher.

In a sentence, collected by Europa Press, the Criminal Chamber of the high court explains that, in this specific case, in which a continuous sexual assault on a minor was committed, with an aggravating factor of the prevailing relationship of superiority and mitigating reparation of the damage, the law of integral guarantee of sexual freedom has no incidence.

The magistrates explain in this regard that, with the so-called 'law of only yes is yes', the sentence would not be more favorable to the prisoner, but would entail a higher penalty than that imposed under the previous code.

In this context, the court explains that "the sentence imposed on the appellant is as the perpetrator of a continued crime of sexual assault on a minor under 16 years of age, provided for and punished in articles 183.1.2 3 and 4 section d) of the Penal Code in its wording above, in relation to article 74 of the Penal Code, concurring the mitigation of reparation of the damage".

"With the reform, the prosecuted conduct would be sentenced through articles 181.1, 2 (in relation to article 180.1.5ª) and 3, which in relation to article 74, would determine a minimum sentence of twelve years and six months, in no way favourable, if not superior, to the twelve years imposed", details the ruling.

The Provincial Court of Lleida imposed a sentence of 9 years in prison and compensation for civil liability of 20,000 euros to the victim as the perpetrator of a continued crime of sexual assault on a child under 16 years of age provided for and punished in articles 183.1, 2, 3 and 4 section d) of the Criminal Code in its previous wording, in relation to article 74, concurring the highly qualified mitigation of damage repair.

The defendant, according to the sentence, would have abused his niece since she was 11 years old and until she was 16, when she reported what had happened. After committing the sexual assaults, the 51-year-old convict told the victim that if she told anything about her, they would lock her up in a psychiatric hospital and that she would do the same to her little sister.

The Superior Court of Justice of Catalonia upheld an appeal from the victim's family and raised the sentence to 12 years in prison for not appreciating the very qualified mitigation of reparation for the damage, but the simple one, and imposed compensation of 80,000 euros.

This ruling has now been confirmed by the Supreme Court, which has dismissed the appeal filed by the convicted person who, among other reasons, claimed that the mitigation of reparation for the damage be applied as highly qualified, as the lower court ruling did.

The Chamber rejects this approach and indicates that the appellant consigned 12,000 euros as civil liability. That, in the opinion of the magistrates, "is insufficient even for the estimated simple appreciation."

The ruling adds that "with such a meager consignment, 60% of what is required in bail, just 24% of what is requested by the Public Prosecutor's Office and 15% of what is interested by the private prosecution, which would ultimately be granted, in in any way" is "required attenuation possible".

"As we already anticipated, not even in its simple consideration, since the consignment made of that amount was for civil liability, in its realization of reparation for the damage, but not to deliver to the victim, but to have it deposited civil liability in the event of a conviction", the sentence affects.

In the same way, the Chamber rejects the allegation related to the improper application of the aggravating factor of prevalencia and indicates that the content of the factual account must be followed, where "it is narrated that the defendant not only took advantage of his minor sexual assaults, starting when I was eleven years old.

But it is that this one, details the Supreme Court, would also have taken advantage of his niece during family gatherings. The high court also focuses on the ages of the aggressor and victim, showing a difference of forty years between them.

"The facts therefore describe a clear assumption of the prevalence of a relationship of superiority, different from that derived by ministry of law due to age, since from the proven account, it would be equally applicable even if the victim was not a minor," it reads. failure.

The same, he concludes, materialized "in the diverse hierarchical position of both in the large family that they were part of, where they occasionally lived together." "As it happens in the first aggravated episode where, in addition, not only the low age of the victim affects, but especially the enormous age difference between the two," the sentence settles.