Attention was drawn to the kiss involved by Luis Rubiales, the suspended president of the Royal Spanish Football Federation, after legal action by the prosecution. The case focuses on the actions of the player and the prosecutor’s formal description of them. Fifteen days were given for a response.
If a criminal case proceeds, the central question for a conviction of sexual assault will be whether there was clear consent and what sexual intent was present when the executive kissed in front of television cameras. This is a matter with links to international sports prominence and a wealth of Supreme Court precedents.
The closest judicial precedent distinguishes a 13,800 euro fine imposed on a businessman who admitted kissing Adelante Andalusian leader Teresa Rodríguez in September 2019.
TAD Takes a Stand on the Government’s Position: Demands Additional Documents for Rubiales’ Application
If Hermoso does not respond to the Prosecutor’s proposal, there is a chance that the trial could be refused and not proceed, since such crimes typically require the victim’s complaint rather than a mere filing. The Prosecutor’s Office can act ex officio only in cases involving minors or vulnerable individuals.
The law allows prosecutors to proceed without the victim’s presence in the legitimate interests of the case, a principle previously exercised when the National Court opened the matter after it became public. The player described feeling vulnerable and said the kiss by a superior was an impulsive, sexist action without consent.
The prosecution has formally charged Rubiales with alleged sexual assault against Jenni Hermoso.
The Prosecution Files Charges Against Rubiales for Alleged Sexual Assault
A lack of consent is a key element for any future criminal action. The National Court would handle acts abroad, should the prosecutor decide to investigate further.
Attack on Freedom
The offense under review falls under Article 178 of the Criminal Code. It carries a potential penalty of one to four years in prison for acts that violate another person’s sexual freedom without consent. The article also notes that the use of perceived power or authority can factor into the assessment, especially when the accused holds a leadership role in the federation to which the victim belongs.
In blunt terms, the absence of consent is a defining element that predates the controversial reform commonly referred to as the yes means yes law. If violence or intimidation occurred, it would be treated as sexual assault.
Current guidelines classify such behavior as aggression, including aggravated scenarios, with clear rules for determining consent: it is only present when freely expressed by the person involved.
What Did the High Court Say?
On the topic of ijtihad, a ruling last year addressed sexual abuse rather than an attack, specifically about a kiss involving a minor. The court noted that the erotic context of the act is clarified when one party pulls the other toward themselves.
In this case, the higher court diverged from a 2015 decision about a kiss between a grandfather and grandson, describing that in certain contexts a kiss can be a non-erotic expression of emotion rather than a crime when no sexual intent is present, according to criminal lawyers.
1/ Rubiales case, from criminal and procedural law.
— A legal commentator on social media
The lawyer noted in a thread how the court should analyze the relationship between the alleged offender and the victim, including any age difference and whether there was a connection to justify the action or a consensual invitation.
The sovereign court later added that sensual mood is not a prerequisite for the crime; instead, the subjective element is the recognition and acceptance of the sexual nature of the conduct when consent is not present.
In cases where the specifics are ambiguous, the Supreme Court emphasizes that a lascivious mood can affect the severity of the offense. If the matter goes to trial, the National Court will determine whether the circumstances surrounding Rubiales’ kiss warrant a conviction for sexual assault.