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The Supreme confirms a year in prison for abusing a waitress in a bar:
The Supreme Court has confirmed a sentence of one year in prison for a man who in 2018 practiced various touches to the waitress of a bar in the Cadiz town of The Port of Santa Maria. The defendant asked for acquittal alleging that the touching and comments had been “fleeting and scarce” and the Supreme Court replies that, if there is evidence, he is a sexual abuse: “The defendant objectified the victim’s body without her consent, limited the victim’s freedom of self-determination, which is projected with absolute and non-negotiable clarity in the right to decide when, how, with whom and to whom to express their sexuality or their desires sexual”, settles the High Court.
The events of the sentence to which elDiario.es has had access occurred on a Friday in July 2018 at four in the afternoon. The convicted entered a bar in El Puerto de Santamaría where the victim worked as a waitress. He first dedicated comments of sexual content to her such as “your tights are getting lighter” or “I know you love me, with those tights how can you not love me”. He said it, as Justice firmly declares, “while he looked her up and down.”
The waitress, “increasingly overwhelmed” according to the Supreme Court, went out to smoke and that was when the condemned man came out after her. First, “in a clearly libidinous mood, she approached him and put her knee between his legs.” After her, when she re-entered the bar to avoid him, he “passed after her, and in a libidinous mood, he grazed her behind her with her penis.” The woman couldn’t take it anymore and she only managed to ask her partner to “please” stop and leave her. The abuser left without paying for the drink.
The nine magistrates who have studied the case have had no doubt that it was a crime of sexual abuse, from the criminal court that imposed a year in prison for the first time to the criminal court of the supreme court who has just confirmed his sentence, passing through the Provincial Court of Cádiz. According to sources in the case, it is a sanction of less than two years in prison but which he will have to serve since, when he was sentenced in the first instance, he already had a record, according to these same sources, among other things for gender violence. By then, in fact, he had already been sentenced ten other times.
Already in the second instance, the Cadiz courts affirmed that the victim’s statement was “incontestable” in front of the accused, who did not even appear in court. They defended that it was a crime against sexual indemnity “because it is relevant and the libidinous spirit is obvious.” Already then he tried unsuccessfully to be sentenced, in any case, for a minor crime of coercion and that his sentence be reduced in any case for allegedly being drunk. Arguments that have failed again in the Supreme Court.
For the judges, the facts attributed to him have “an unequivocal sexual content” and this sexual meaning cannot depend “on an extra-criminal element as diffuse as the so-called lewd or libidinous spirit of the author”, underlines the Supreme Court before recalling that it matters “Very little if the perpetrator was able or sought to feel, or not, pleasure in carrying out the action or if he was moved by other different purposes such as reifying or humiliating”. In this sense, they recognize that the episode did not last long but they cannot be simple acts of humiliation.
The Supreme Court is clear on this point: “The accused objectified the victim’s body without her consent, disturbing her personal privacy and sexual indemnity. Putting his knee between his legs and brushing the victim’s body with his penis, he significantly limited the freedom of self-determination of the victim. Which is projected with absolute and non-negotiable clarity in the right to decide when, how, with whom and to whom to express their sexuality or their sexual desires”, says the Supreme Court in a sentence that has had as rapporteur Javier Hernandez.
The Supreme Court, therefore, does not consider that a case of sexual abuse can escape the Penal Code due to the fact that it was brief, that there was no penetration or that the abuser had no intention of attacking the sexuality of the victim. In this process, moreover, it has been proven that this was not the abuser’s first conviction: the Court of Cádiz refused to reduce his sentence of one year in prison, defending that they could not “ignore the subjective dangerousness of the appellant, since this will be the eleventh sentence imposed”.
The judges did withdraw the fine that had been imposed on her for a crime of fraud when she left the bar without paying for her drinks. For the Supreme Court, the proven facts do not allow it to be deduced that there was a “de-patrimonialization” plan or that there was a deception deployed to execute it. He did not pay for the drinks, but in the terms that are declared proven and in the production context, marked by the facts that caused the appellant today to be expelled from the premises, said breach only acquires civil relevance”. If the bar wants to recover the money from the beers it consumed, it must therefore go to the civil court and not to the criminal court.
Data from the Central Registry of Prisoners reveal that in 2019 alone there were 1,218 people convicted of crimes of sexual abuse in Spain, 99% of those convicted were men. A proportion similar to that of the crime of sexual harassment, with 68 men convicted and one woman, as well as in that of exhibitionism and sexual provocation with 426 men convicted and six women convicted. The same data reveals that the majority of prison sentences for these crimes of sexual abuse are less than two years in prison, which do not necessarily imply that the convicted person goes to jail.