The Superior Court of Justice of Andalusia, Ceuta and Melilla has confirmed the sentence imposed by the Seville Court, of one year and nine months in prison for a National Police officer who kissed a detainee without her consent in the holding cells area of the city's courts.
According to the ruling, the convicted man tried to gain the complainant's trust and seek some intimacy, flattering her physique, worrying about her state, situation and personal matters, and even taking prior steps in the approach, asking her by written message if he could hug her, which the complainant denied, and, despite this, the police officer kissed her on the cheek and tried to on the lips, although he did not succeed," the ruling stated. The appellant insisted on approaching and kissing the detainee without her consent, and taking advantage of a situation in which the appellant was acting as a guard and the victim's status as a detainee, which in these cases makes them feel more victimized," the TSJ concluded.
The officer has been sentenced to one year and nine months in prison, as the responsible perpetrator of a crime of sexual abuse (now sexual assault), with aggravating and mitigating circumstances of drunkenness and with the accessory of special disqualification for the exercise of the right to passive suffrage during the term of the sentence," the ruling revealed.
The ruling has determined that the "stolen kiss", and, therefore, without express or tacit consent, is part of a sexual assault today and sexual abuse at the time of the events. "It is proven that there was physical contact of a sexual nature between the appellant and the complainant, such as an unconsented kiss."
The proven facts have highlighted that "the appellant's conduct involved unconsented bodily contact with sexual significance. The kiss and the attempt of another kiss constitute an intrusion into the sexual freedom of a person who was in a hostile environment because it was unknown, with the intentional animus or purpose of obtaining sexual satisfaction at the expense of another."
It cannot, therefore, "be understood that there is a right of any person to approach another and give them a kiss when the victim does not admit it as proof of affection or love due to their personal, family, or whatever circumstances, but as a personal attack on their privacy and sexual freedom to consent or not consent to who can approach them to do such an intimate and personal act as giving them a kiss."
"A bodily invasion of the victim"
The Supreme Court has stated that "unconsented bodily contact is not permissible under any pretext if there is no consent." "There was a kiss given by the officer to the detainee taking advantage of this situation. Not only did the circumstances of the case not evidence consent, but, precisely, the opposite, as stated in the proven facts."
In any case, "it must be insisted that a "no" from the victim is not necessary in the face of attempts to kiss a woman, but that for there to be no crime, what is needed is consent. In this sense, the key is consent, to the point that if this has not occurred, there has been sexual assault," it was added. "And in the present case, the circumstances of the case did not support express or tacit consent, but rather the opposite, that is, the opposition to contact between the perpetrator and the victim, as is clearly stated, and in circumstances of the perpetrator taking advantage of the scenario in which the victim was found."
In the ruling issued by magistrates Andrés Martínez Arrieta (president), Ana Mª Ferrer, Andrés Palomo and Ángel Luis Hurtado, it has been stressed that "in cases of "stolen kisses" and taking into account the circumstances of the case that could evidence the woman's consent to accept the kiss, the current sexual assault, former sexual abuse, would be being committed, being, therefore, typical and punishable this conduct. And in the specific case, a police officer can in no way approach a detainee and give her a kiss taking advantage of her situation and the special vulnerability in which she finds herself."
In this context, "it is evident that the fleeting contact of an unconsented kiss supposes a bodily invasion of the perpetrator on the victim who is not obliged to admit acts on her body of a sexual nature such as an unconsented kiss on her face, and taking into account the social reality, the sexual connotation of this type of unconsented acts is undeniable, even if it is fleeting, such as a kiss when consent is not present ex art. 178 CP."