Dani Alves' strategy: make the victim doubt with minimal credibility

“They started the game losing, but losing by a landslide. Over the course of a year he has had to come back. We will see what happens.” The comment is from a lawyer who has witnessed the last session of the trial of the Alves case, in which three women have defended their dissenting positions in the rape trial of Dani Alves, accused of sexually assaulting a 23-year-old girl in the toilets of the Sutton nightclub in Barcelona. At ten o'clock last Wednesday night, the first great trial of the law of the only yes is yes was seen for sentencing. In the darkened corridors of the Palace of Justice, the veteran criminal lawyer considers that, despite the initial disaster (caused by Alves himself and his different versions), there is some possibility that the court will end up acquitting him “despite the fact that everyone considered condemned.”

Alves's very narrow path to succeed in a process in which he has almost everything against him involves discrediting the victim's narrative. It is a common strategy in crimes such as sexual assaults, which almost always occur far from the eyes of others: in the bathroom of the VIP area there were no cameras or other witnesses, and what happened there “we cannot know because we were not inside,” as said prosecutor Elisabeth Jiménez, who vigorously defended the “absolute credibility” of the victim. Since her first statement, she has always given the same explanations for both what happened in the VIP area (where, through a waiter, a friend of Alves invited her, a friend and her cousin to have a drink) and the Incident in the bathroom.

The coherence of the victim contrasts with the lurches that Dani Alves has taken throughout a year of instruction. On January 20, 2023, three weeks after the attack, the footballer was arrested and taken to testify before the investigating judge, Anna Marín. That statement was a gross, almost lethal error, which not only led to his provisional detention but has hampered his defense possibilities until the day of the trial. Perhaps he was poorly advised, perhaps he was reckless, perhaps he believed himself unpunished by the actions of the Spanish justice system or perhaps, as his lawyer, Inés Guardiola, maintains, he was deprived of complete access to the proceedings and was prevented from preparing them in conditions.

Alves's original sin in the criminal process is that he gave up to three versions of what happened, which changed on the fly as he was presented with evidence (such as the biological remains that on the night of the events, December 31, 2022, the mossos collected from Sutton). He first said that he did not know the complainant; later, that he met her in the bathroom but nothing happened; and finally, that the girl “pounced” on her while she was relieving herself in the toilet and performed fellatio on her. She lied. She recognized it four months later, in April, when he was trying at all costs to convince the judge to leave the Brians 2 prison and be released, with precautionary measures, while awaiting trial. He alleged a reason: he did not want his wife, the model Joana Sanz, to find out about what for him was not a rape but an infidelity. In that statement (which he has repeated at trial), Alves maintained that there was a “mutual sexual attraction” while they danced in the VIP area and that the sex in the bathroom was consensual.

The weakness of the mitigating factors

The explanation that he wanted to save his marriage may help him overcome these contradictions, but its lack of reliability remains a problem. “He has given so many versions throughout the procedure… And now he has added the alcohol thing, that we had forgotten about,” the prosecutor said ironically. Although he asks for his acquittal on the grounds that he is innocent, the defense proposes an alternative scenario in case the court does not believe him: to reduce his sentence to compensate for the damage and state of drunkenness. But neither of these two mitigating circumstances has been able to be demonstrated, with too much force, at least in the trial.

The 150,000 euros in compensation demanded by the Prosecutor's Office for the damages caused to the victim were paid by Alves only when the judge imposed bail and threatened to seize his assets. The defense is now trying to argue that he made a true reparative effort (a key criterion for appreciating mitigation) since he is “practically ruined.” Regarding the consumption of drinks, “we do not have any objective proof,” as the victim's lawyer, Ester García, recalled, beyond witnesses from his surroundings (his wife, I say, came home, in Esplugues, smelling of alcohol), some tickets from the restaurant where they ate (five bottles of wine, one of whiskey, without knowing who drank what) and some experts paid by the footballer who ended up recognizing that Alves “knew what was happening” at all times in Sutton.

Faced with a request from the Prosecutor's Office for nine years in prison (which the victim raises to 12), Alves focuses on an all or nothing scenario. Either a severe sentence or an acquittal, without a reduction in the sentence being possible through a pact that was explored, without success, for months and that would have implied a reduction in sentence in exchange for acknowledging the facts and paying compensation. millionaire But that did not happen and now the magistrates of Section 21 of the Barcelona Court must pass judgment on a case that has generated enormous expectations, not only because Alves is a world-famous figure, but because of the consequences for the application of the law. of the only yes is yes and for the message that, socially, is derived from the content of that resolution.

To issue a sentence, all the parties consulted by this newspaper agree, it will be essential how they evaluate the victim's statement. If it is reliable, persistent and solid and if they do not see spurious intentions, “it is sufficient proof of the charge,” according to jurisprudence, as García, a lawyer with extensive experience defending victims of sexual assault, also recalled in the final report.

Images of discord

The problem with the victim's story is not one of incoherence, as is the case with Alves, but of a different nature. What he says about what happened in the dance area does not correspond, in many passages, to what the images from the nightclub's surveillance cameras show. Although with two reservations. The first is that the judgment of Alves case has been held with special measures to protect the identity of the victim, whose image and name were revealed by the mother and people around the player through a video broadcast on social networks. His testimony was held behind closed doors and, although two hours of recordings were shown to the parties, they were not shown to journalists either, so following the trial has been like reading a novel from which two key chapters have been separated. The second is that the defense and prosecution disagree in the interpretation of some specific fragments; for example, whether it is the girl who puts her hand on the player's penis while they dance or whether he is the one who fucks her without permission.

For Guardiola, who described the images in detail in his final report, they speak for themselves: “He rubs his buttocks against Alves's private parts, makes endless movements of a sexual nature and expresses their mutual
attraction; “We are facing an explicit act of consent.” After that approach, the player invited her to go to the suite room (an area with a bathroom, sofas and a television to which the clients of table 6, where they were, have access) to maintain relationships. The young woman agreed to this and did not withdraw her consent, always according to her defense. The victim admits that she entered the bathroom voluntarily, but she alleged that she “didn't know where she was going” and that she did so to “talk to him” because she felt “collapsed” and she began to be “scared.” of the player. She also attributed the “foolishness” in the dance area to Alves and told how she felt “uncomfortable” about the situation from the first moment. All of this is recorded in her statement before the investigating court and was ratified, according to the parties present at the trial, during the oral hearing.

Of the 16 minutes in which they both spent in the bathroom, there are two irreconcilable versions. The victim says that she wanted to leave immediately and that Alves closed the door and prevented her from doing so before subjecting her to a humiliating and violent attack: he tried to force her to perform fellatio on him, insulted her, slapped her and penetrated her vaginally without her consent until he ejaculated. . The soccer player said that they kissed, that she performed fellatio on him while he was sitting on the toilet bowl and that, from that same position, the girl climbed on top of her and they had “consensual” sex. “At no point did he tell me to stop, we were both enjoying it and that's it,” he said at the trial.

The prosecutor undermined any moral reproach to the victim. “Judging her for dancing, for having agreed to go up to a booth, is tremendously unfair (…) She was not predisposed to have any sexual relationship of the type he intended.” Consent has to be express, it can be withdrawn at any time and you do not have to be a perfect victim at all. Guardiola conceded all of this in his reply (“fortunately, the idea that a woman's behavior can contribute to the commission of a crime has been left behind”), but he pointed out that his statement “does not stand up and has been left void of meaning.” “all plausibility” and, therefore, does not serve as sufficient proof of prosecution.

What the defense is saying is that, if he did not tell the truth in the first part of the facts (which is confirmed by images) he could well have lied about what happened in the bathroom. García reproached that “you cannot require a photographic memory” of a victim and that she remember every detail (for example, whether they kissed or not, something that the girl admitted that night but later she denied). “Images of terror may not be seen” in the VIP area, the prosecutor added, “but sexual assault continues to exist.” For the defense, the weakness goes beyond a specific detail and is an amendment to the whole.

There are peripheral elements that will help tip the balance. The defense, for example, maintains that the arrangement of the footprints found in the bathroom is only compatible with the description made by Alves and calls into question the physical and psychological consequences of the victim. The prosecution has dozens of witnesses who attended to the young woman on the same night of the events, and who agree when it comes to explaining her state of health. shock. “She has hurt me a lot, she has come inside,” the young woman repeated, in a state of agitation that everyone (goalkeepers, Sutton managers, mossos) were able to corroborate. But the essential debate that the magistrates are going to face, with full access to all the documents, is that: credibility. The objective of the defense is none other than to generate a “reasonable doubt” so that, by virtue of the principle in dubio pro reo (in case of doubt, an acquittal must be issued) give Alves an unexpected and improbable victory.

_