The Superior Court of Justice of Andalusia (TSJA) has revoked the sentence of the Provincial Court of Malaga which this summer had sentenced a man to nine years in prison for the crime of sexual violence against a young woman with a recognized disability of 66%. Her defense appealed and the defendant has now been acquitted because the appeals section believes that the facts occurred “without her expressing her opposition” and “without him realizing that the young woman suffered from an intellectual disability, believing at all times that she had the capacity to decide freely about her sexuality” despite having met twice while doing gardening work. Furthermore, she assures that “it is clear” that “they were both physically attracted to each other”, although in her statement she only said that she liked him “a little”. The man, who was in temporary prison, was released.
The events occurred in January 2023 in the municipality of Coín, in Malaga (25,809 inhabitants). The man, who was 26 years old at the time, met the girl on the street, who was 24 years old and had an intellectual disability of 66% recognized by the Court of First Instance and Education Number 2 of Coín. He invited her to his house with the excuse of giving her his phone number and she accepted. There, he took her to the bedroom and asked her to take off her clothes, which she agreed to. Then he touched her on different parts of her body.
They then lay down on the bed and he penetrated her “without any evidence that she had expressed her opposition”, according to the ruling. She bled and suffered a vaginal laceration that required 15 days of treatment, one of which required hospitalization. The girl, after getting dressed, returned home and told her mother that she had been raped.
During her testimony, which the Provincial Court of Malaga gave credibility to, the young woman said that she did not want to have sexual intercourse with the accused, “but that she hadn’t told him because she was scared and couldn’t even move” while she was lying on the bed. And that during the penetration it hurt her “even though it continued”. The man said the woman “voluntarily took off her clothes and agreed to have sexual intercourse” and that he was unaware of the disability.
He also assured that his poor command of Spanish made it difficult for him to identify that limited intellectual capacity. And this was also justified in a psychological assessment which reduced the victim’s cognitive disability score to “moderate”, with an IQ of 54, when the current average is around 100 points.
The judge believes that “intellectual disability, in itself, does not automatically cancel the capacity for sexual self-determination, but rather an individualized analysis must be carried out on a case-by-case basis”. And that in this case it was a question of discerning whether sexual contact with a person with a mental disability derives from his determination or whether it is the man who, knowing these limitations, takes advantage of them to “satisfy his sexual desires”. To do this, it relies on several issues derived from the statements of the complainant and the accused.
And he claims, for example, that “it is clear” that “both were physically attracted to each other”. He said he liked her for her looks and behavior, as she didn’t smoke or drink. And she kept his phone number under the name “novio careño,” “which suggests she found him attractive and considered him his girlfriend,” although the young woman said in court that she uses that word to refer to different people and said only that she liked him “a little.”
“Serious and insurmountable doubts”
The sentence also states that the man did not force him to undress, not even to lie down on the bed. And that when he felt pain during penetration, he didn’t realize it. Furthermore, “at no time did he express his opposition to having carnal contact with the accused” and that he had “actively collaborated with him to carry it out, undressing and lying on the bed”. “We do not see how he could have deduced that, in fact, the young woman did not want him, unless it could be established that she was aware of her mental disability and her inability to decide freely regarding her sexual determination,” the text reads.
And the members of the appeals section of the TSJA say they have “serious and insurmountable doubts” that the defendant had such a perception, despite having themselves watched the half-hour video of the complainant’s statement and verified in that short time “the limitations” that the victim presents. “But neither the accused is a psychologist or a legal professional” nor is there evidence that the two conversations in the days before the sexual encounter “were sufficiently extensive and complex to have realized his disability”.
“You might think that the conversations they had were those of two young people who had just met,” they add. And that, although the defendant is Spanish, he was born in Morocco and does not speak Spanish “which could make it difficult for him to perceive any anomaly in her”.
For all these reasons, the court revokes the sentence of the Provincial Court of Malaga and acquits the accused of the crime of sexual violence for which he had been convicted in first instance. Furthermore, since for this reason he is in temporary prison, they ask that his “immediate” release be ordered. An appeal can be lodged against the decision.
The 016 telephone line assists victims of sexist violence, their families and those around them 24 hours a day, every day of the year, in 53 different languages. The number is not recorded on the phone bill, but the call must be canceled from the device. You can also contact via email 016-online@igualdad.gob.es and via WhatsApp on 600 000 016. Minors can contact the ANAR Foundation telephone number 900 20 20 10. In case of emergency it is possible to call 112 or the telephone numbers of the State Police (091) and the Civil Guard (062). And if you can’t call you can use the ALERTCOPS application, from which an alert signal is sent to the Police with geolocation.
