The First Section of the Provincial Court has acquitted Fernan Wallens Daza, who was accused of sexually abusing a 10-year-old girl in Arrecife in 2016 and was tried on May 24 in Lanzarote.
The Prosecutor's Office requested a sentence of 12 years in prison for the defendant and compensation for the victim of 30,000 euros, but the court considers that "the facts under accusation have not been proven with the necessary certainty required in a criminal procedure." Specifically, the court bases its decision on the fact that the biological samples taken from the minor obtained the genetic profile "of at least one male", but it does not match that of Fernan Wallens Daza, as his defense had argued in the oral hearing to request his acquittal.
In this way, the First Section of the Provincial Court believes that "it is therefore not proven" that Fernan Wallens Daza, who maintained a "friendship" with the minor's father, "put his hand under her shirt touching her chest, nor that moments later the minor sat on the defendant's legs, nor that he took advantage of this situation to access the girl's private parts to end up inserting some of his fingers, even partially, into her vagina", as stated in the Prosecutor's Office's indictment.
The "disturbing" result of the biological samples
The court highlights in its ruling that the minor "has maintained substantially the same version of the events from the beginning", answering "questions from the parties coherently" and "providing details of what she considers happened." However, it considers that her account "loses strength and effectiveness" when "it connects with the objective elements of corroboration, coming from external sources of evidence beyond the testimony of the minor."
Thus, although it points out that it is "true" that the testimonies given by the parents and even those given by the doctor who assists her and the forensic doctor could serve to support the consistency and solvency of the account, even more so when there is a forensic psychological report in which the professionals involved highlight the solidity of such testimony", the First Section of the Provincial Court points out that "the 'disturbing' result of the biological samples taken from the minor and the accused should not be forgotten."
That analysis concluded that "all samples show negative results for the presence of semen" and that in the vaginal sample taken from the minor "the genetic profile of at least one male is obtained", but that "it does not match" the one obtained from Fernan Wallans. Samples were also taken from the minor's clothing, finding in her panties "the genetic profile belonging to at least two males" and in her pants "the genetic profile belonging to at least four males."
"It is striking that the genetic profiles corresponding to males found in the vaginal samples do not match those of the accused, even more so when the minor, in her account, states that he put at least one of his fingers into her vagina", the court points out, which indicates that "the logical consequence of such a procedure is that the finding derived from the sample was initially from him and not from an unidentified third party", and that "what should have been done in his case at the time is to have verified the cause of such incompatibility of genetic profiles and their non-correspondence."
The medical reports also do not describe any bodily harm
The First Section of the Provincial Court states that "it is also disconcerting that neither the medical report nor the forensic medical report describe any bodily harm, however slight, in the most intimate part of the minor." And it is that, although it adds that "it is true that the introduction of fingers is compatible with not causing any injury", it indicates that "it should not be overlooked that the minor refers to it as 'scraping' and hurting her." Furthermore, "the forensic psychologists, in the act of the trial, acknowledge that when they examined the minor they were not aware of the report from the genetics laboratory, which, in the opinion of this court and in view of what has been verified, would have been useful in their professional work", it is stated in the ruling.
"Thus, the court considers that, despite the fact that the minor's statement presents the internal and typical indicators of certainty, it should not be overlooked that there are external data that distort its probative potential and that ultimately impoverish the version derived from it. Therefore, the minor's statement, although persistent and firm, is incapable in this case of supporting the pronouncement of conviction of the accused", the court rules, which nevertheless points out that "it is aware of the evidentiary difficulty surrounding this type of crime, which occurs in privacy or clandestinely." "But even in these cases, our highest court continues to demand that the victim's testimony as the sole evidence has external elements of corroboration that enable it and not weaken it", concludes the First Section of the Provincial Court.
