TSXG rejects retroactively applying the 'yes is yes' law because it would increase the penalty for a man for raping his wife

Confirms the sentence of the Provincial Court of Lugo that sentenced him to almost nine years in prison for sexual assault, mistreatment and coercion

   LUGO, 4 Ene. (EUROPA PRESS) -

The Superior Court of Xustiza de Galicia (TSXG) has refused to retroactively apply the 'only yes is yes' law because, doing so, would increase by one year the prison sentence that the Provincial Court of Lugo had already imposed on a man for raping his wife in 2019.

Among other crimes, the Court had sentenced him in June 2022 to six years in prison for the crime of sexual assault. However, the Galician high court, when reviewing the appeal that it filed requesting a reduction in the sentence based on the new law, pointed out that, in any case, it would have to be increased to seven years because one of the new aggravating factors that it introduces the reform of the Penal Code is that the victim and the defendant maintain a marital relationship or a similar affective relationship.

In this context, the magistrates of the TSXG emphasize that the sentence cannot be increased for acts committed in 2019 "because proceeding in this way would be unconstitutional by retroactively applying an unfavorable sanctioning provision", contrary to what happens in cases in which that the sentence is lowered.

According to the ruling of the Civil and Criminal Chamber, dated December 14, the court dismissed the convicted person's appeal and fully maintained the sentence of eight years and 11 months in prison that the Provincial Court had imposed on him: six years for sexual assault, one year and 11 months for coercion, seven months for habitual abuse and another six months for family abuse. Likewise, when the man, a Moroccan national, serves half of the sentence, he will be expelled from the national territory.

Now, the TSXG accepts the account of the proven facts of the first instance sentence, in which the Court considered proven that the convicted man raped his wife -it was a marriage arranged by the family-, as well as that he uttered " continuous insults and harassment" against the victim, whose mobile phone was controlled.

In addition, according to the ruling, he did not let her leave the house alone and "frightened" her. In the resolution, the magistrates also indicated that, realizing that her wife had begun a friendship with the owner of the apartment, she "locked the door of the home, leaving her locked inside her."

The Civil and Criminal Chamber of the TSXG has therefore dismissed the appeal filed by the convicted person -who, in fact, alleged that he had not been able to sexually assault his wife because it was Ramadan- and has refused to review the sentence of six years in prison imposed for the crime of sexual assault due to the entry into force of Organic Law 10/2022, on the comprehensive guarantee of sexual freedom.

The magistrates explain that although the new law reduces the penalty of the basic type of this crime to a minimum --from 6 to 4 years--, there is now "a new aggravated subtype", which they cannot apply because it would be retroactive, "consistent in which the victim is or has been a wife or woman who is or has been linked by a similar emotional relationship, even without cohabitation, threatening him with a sentence of 7 to 15 years in prison (instead of 4 to 12 years)".