First penalty reduction in the Region of Murcia to a sexual offender by the law of ‘only yes is yes’

The entry into force of the Law for the Guarantee of Sexual Freedom, known as the ‘only if is yes’ Law, has allowed the reduction of the sentence imposed on a man who tried to rape a woman near El Malecón, in Murcia. The resolution reduces the sentence from four and a half years that was initially imposed to three years and one day in prison for the sake of applying the new rule, as judicial sources explained.

The Civil and Criminal Chamber of the Superior Court of Justice (TSJ), in a sentence handed down last week, dismissed the appeal filed by the defense of the man convicted of this attempted sexual assault on a woman. The attack occurred in July 2020, in the Alameda garden, near the Malecón, next to the A-30 motorway in Murcia.

Although the court confirms the resolution, it modifies the sentence imposed given that the new norm is more favorable for the accused and, therefore, the revision in the sense interested by the prisoner is appropriate, as explained by the court.

Caught by some policemen

The previous sentence of the Court declared proven that “taking advantage of the fact that it is an area with little lighting and little traffic at that time, the defendant pushed the girl towards an adjoining orchard covered in weeds and completely in the dark, and threw her to the ground ». Then, the court explained, “he grabbed her by her hair and, in order to satisfy her sexual desire, began to kiss her on her mouth and to touch her breasts and genitals over her clothing.” . The defendant did not complete the rape because at that moment “he was surprised by a couple of local police officers who, while on duty in the area, heard the screams (…) and went to the place where the two were, to help the girl” .

The magistrates of the Civil and Criminal Chamber of the TSJ reject that there is a violation of the right to defense and the presumption of innocence, as alleged by the appellant. They stress that the evidence carried out undermines the presumption of innocence, since “the defendant was discovered red-handed” by two local police officers who, “alerted by the woman’s screams, went to the scene until they discovered using a lantern as, between the grass and the weeds, the defendant, with his pants down, was holding the hair of the woman, who was crying and had her blouse unbuttoned and her pants pulled down a little.

The Civil and Criminal Chamber of the TSJ also explains that in this case the principle of retroactivity of the criminal law most favorable to the accused applies. The court makes it clear that the penalty for sexual assault, with the entry into force of the law ‘only if it is yes’, has suffered “a clear attenuation”, going from a prison sentence of 6 to 12 years to another of 4 to 12 years.

For attempted crimes, the penalty is reduced by one degree and, with the application of the new norm, the fork would be between 2 years and 1 day and 4 years -and not 3 years and 6 months to 6 years that would correspond according to the old wording. The penalty, explains the TSJ, is finally set at three years and one day by applying an aggravating circumstance for hiding the face.