Spain’s Supreme Court has ruled that any and all physical contact of a sexual nature, where deliberate, and irrespective of how brief it is, counts as a criminal offence.
This ground-breaking and necessary verdict means grabbing someone’s bottom, breast or legs in a pub, a crowd or on public transport, for example, is no longer simply a tort or civil offence but attracts criminal charges on the grounds of ‘sexual abuse’.
This interpretation of Article 181 of the Penal Code clarifies the situation for many victims – the vast majority women, with the bulk of offenders being men – since verdicts in lower courts have varied between jailing the authors of this behaviour for sexual abuse and dismissing it as ‘nothing’.
The latter verdict was particularly the case when groping was very brief and the court considered it had been too fleeting for the victim to suffer any psychological damage.
But now, however swiftly it happens, it is still considered a crime.
The severity of it dictates whether the offender is sentenced to the minimum of six months in jail or the maximum of two years – although a custodial term of less than two years does not have to be served if it is for a first offence – or a daily fine of between 18 and 24 months.
Prior to the Supreme Court verdict, unsolicited and unwanted groping was considered a ‘minor civil offence’ of ‘humiliation’, ‘duress’ or ‘coercion’, and only then if it was very obviously forceful and lasting at least several seconds.
Sexual intention is required for the offence of ‘abuse’ to apply, and it must be possible for an objective viewer to recognise it as such from a description or from hypothetical slow-motion footage, although it is not necessary for there to have been any witnesses.
The legal precedent was set during a recent case which ended up in the Supreme Court on appeal three years after the alleged offence – a man had reportedly followed a woman into the ladies’ toilets in a bar in Villanueva (Córdoba province) and attempted to enter with her, and briefly brushed against her chest and waist when trying to get hold of the keys.
The actual physical contact was not considered ‘sexual abuse’, since it was not thought that the accused had deliberately aimed for the woman’s breasts and waist, but that the contact had been accidental – however, the decision not to charge him in respect of this contact did not take into account its brevity, saying that if the intention had been there, the fleeting nature of it would have had no bearing on the offence being one of ‘sex abuse’.
It is not clear what his intention was in following the woman into the toilets or attempting to get the keys off her, or whether he was charged separately in this connection.