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Consent, credibility and revictimization: annotated x-ray of the sentence against Dani Alves in 11 key extracts

2024-02-24T05:04:29.132Z

Highlights: Dani Alves was sentenced to four and a half years in prison for rape. The ruling reflects the political, social and legislative advances of recent years. The court's ruling is forceful: there was no consent; and clear on that issue: there is no cause for disbelief. The “lights” of the sentence are clear for several jurists whom this newspaper has contacted. There is also some “shadow”. Here, the analysis of some extracts from the ruling that they believe are “key” to the future.


Five jurists comment on the ruling that sentences the former player for rape to four and a half years in prison, a text that reflects the political, social and legislative advances of recent years


Four and a half years for rape for Dani Alves.

That is the ruling, appealable, of the 21st Court of Barcelona Section after two weeks of deliberation and three trial sessions, between February 5 and 7, in which the Prosecutor's Office requested nine years in prison, 12 for the private prosecution , and the defense requested acquittal under the argument that the former Barcelona player clung to after three different versions - that the sex was consensual - and with a strategy based on discrediting and defaming the victim.

The court's ruling is, however, forceful: there was no consent;

and clear on that issue: there is no cause for disbelief.

The “lights” of the sentence are clear for several jurists whom this newspaper has contacted.

There is also some “shadow”.

Here, the analysis of some extracts from the ruling that they believe are “key” to the future, at a jurisprudential level, but also at a social level.

The consent

“Consent in sexual relations must always be given before and even during the practice of sex

, in such a way that a person can agree to maintain relations to a certain point and not show consent to continue [...].

What's more, consent must be given

for each of the varieties of sexual relations

within a sexual encounter, someone may be willing to perform touching without this implying that they agree to penetration, or oral but not vaginal sex, or vaginal sex but not anal, or sex only with a condom and not without it.

Not even the fact that touching had been carried out would imply having given consent for everything else

. ”

The myths of rape culture

“In the context of whether a sexual assault may have subsequently occurred, it should be noted that neither the

fact that the complainant has danced in a suggestive manner

, nor that she has

brought her buttocks closer to the accused

, or that she has even been able to

hug

the accused, can lead us to assume that He gave his consent to everything that might subsequently happen.

These attitudes or even the existence of insinuations do not

mean giving carte blanche

to any abuse or aggression that occurs subsequently.”

The credibility of the victim

No cause of subjective disbelief has been indicated

, any quarrel, envy, jealousy or other reason that would lead him to report events that would not have occurred according to the accused.

On the contrary

, from everything that the victim has reported, from the sick leave reports provided, from the psychological and psychiatric reports,

we conclude that the complaint, a priori, would bring more problems to the complainant than advantages

.

[…] Nor can we talk about economic interest.”

Neither physical injuries nor resistance

“It has already been said previously that

for the existence of sexual assault it is not necessary that physical injuries occur, nor

that there be evidence

of heroic opposition on the part of the victim

to having sexual relations.”

The protocol

“HHH, director of the nightclub, has stated that [...] it took a lot for him to tell them what had happened

.

They accompanied him to a quieter area.

She was upset saying that she wanted to go home.

He wanted to know what had happened to activate or not activate the protocol.

He then told them she had been the victim of sexual assault.

He later called the police.

The victim told him that they were not going to believe him

, that he had entered voluntarily, that he wanted to leave later, but he did not let him.

The witness has stated that he explained to him that they had to follow the protocol, they tried to explain it to him.

In the end he agreed and stayed

. "

The miseries

"The art.

192 CP imposes as initially mandatory the measure of

supervised release

[…]

five years

to be carried out after the custodial sentence.

[…]

The prohibition of approaching

VVV within 1000 meters of his place of work, home and his person for a period of more than

ten years

than the prison sentence imposed in the sentence, as well as the

prohibition of communication

with her by any means

for the same period

.

[…] The penalty of

special disqualification for the exercise of employment, public office, profession or trade related to minors is

also imposed for a period of

5 years

greater than the custodial sentence imposed.”

Revictimization in the process

"No, it does not seem that the complainant obtained any advantage by reporting the facts, but rather all

problems, not counting those derived from secondary victimization

: explaining the facts to the Sutton workers, later to the Mossos d'Esquadra, to the doctors who attended first the emergency room and then the forensics, the Investigating Judge and went to a trial where she was going to be interrogated by a minimum of three Justice professionals before the observation of a Court of three magistrates.

Media and social revictimization

“In addition, the victim was afraid to report the events due to

the possible media repercussions

it could have and the fact that

her identity could be revealed.

This fear could have been confirmed

by the fact that, as stated by the lawyer for the Private Prosecution, they have recently reported

the leak of

the complainant's personal data.”

Injuries that are condemned separately

“For the

minor crime of injuries , a

2-month fine

is imposed

, taking into account the compensation offered by the accused in addition to the extent of the injuries with a daily fee of 150 euros, which is the amount requested by the private prosecution, with subsidiary personal liability in case of non-payment of one month.”

Injuries that are not separately condemned

“It is clear that the victim was

psychologically affected by the events

, has been on sick leave since then, and is receiving

psychological and psychiatric support

.”

Who is the aggressor

“That

we condemn Daniel Alves Da Silva as the author responsible for a crime of violation

of articles 178 and 179 of the Penal Code, the mitigating circumstance of reparation of damage of article 21.5 CP contributing to the sentence of four years and six months in prison.”


With information from

Pau Alemany

.


The 016 telephone number serves victims of sexist violence - from psychological to sexual, economic or trafficking -, their families and those around them 24 hours a day, every day of the year, in 53 different languages.

The number is not registered on the telephone bill, but the call must be deleted from the device.

You can also contact them by email at

016-online@igualdad.gob.es

and by WhatsApp at 600 000 016. Minors can contact the ANAR Foundation by calling 900 20 20 10. If it is an emergency situation, You can call 112 or the National Police (091) and Civil Guard (062) telephone numbers.

And if you cannot call, you can use the ALERTCOPS application, from which an alert signal is sent to the Police with geolocation.

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Source: elparis

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