The Criminal Chamber of the High Court of Justice of the Canary Islands has confirmed the sentence of ten years and six months in prison for a man for sexually assaulting a 9-year-old girl in Lanzarote on an ongoing basis.
The Court has dismissed, despite the dissenting vote of a magistrate, the appeal filed by the convicted man and has maintained the restraining order, the prohibition of communicating with the survivor and compensation of 30,000 euros for moral damages.
The events date back to Christmas of 2018, when the man "moved by his sexual attraction to minors" sexually assaulted his partner's cousin on several occasions when the girl was between 9 and 10 years old.
According to the facts stated in the ruling, the first sexual assault took place on a beach in San Bartolomé. The minor was diving when the man inserted "one of his hands inside her bikini, specifically in her genital area." At that moment, he tried to insert one of his fingers into her vagina.
The second assault was in a park near the victim's home in Arrecife. At that time, the accused took the opportunity to masturbate in front of her, made her kneel and inserted his penis into her mouth, moving her head back and forth. At this time, the girl also revealed that she felt "a feeling of suffocation."
After that, and according to the same court ruling, the man masturbated in front of the Las Dominicas school. In addition, in an episode in the minor's home, which he visited with his partner, he showed her a pornographic video.
Psychological consequences of sexual violence
After these sexual assaults, the minor has suffered "moral damages, feelings of anguish, fear, confusion, panic, shame, discomfort and unease." In addition, a "poor vision of her body and her worth."
In addition, the psychological report that the girl underwent states that she suffers from anxiety and post-traumatic stress disorder, derived from "a traumatic event that causes her discomfort and recurrent episodes of anxiety." These episodes were also intercepted by the minor's mother, who assures that the girl has suffered depression after the sexual assault.
The already convicted man was in pre-trial detention for these events between September 29, 2021 and March 15, 2022. In addition, he has several criminal records since he has been convicted of the crimes of robbery with violence and intimidation, for a crime of injuries, for another crime of driving without a permit, for a minor crime of insults or harassment in the family environment and for a crime of threats in the family environment.
The defendant's defense argued before the High Court of Justice of the Canary Islands that there was an "error" in the interpretation of the proven facts. Along these lines, he denied the statements of the police and the minor's mother and framed them within a conflict between him and his sentimental partner, the girl's cousin.
He also assured that his "presumption of innocence had been violated" because, according to his criteria, the girl took time to report it.
Faced with this, the Court has ruled that the Court of First Instance adhered "to the rules of logic" and that "the requirements of legal doctrine have been met." In addition to the fact that "the evidence has been sufficient and enough" to cause "the decay of the presumption of innocence."
Likewise, it has highlighted that the Provincial Court indicated that "the victim's statement meets the parameters required by the doctrine" and that it is "clear, coherent, credible, precise and with abundant details."
Along these lines, it has also been endorsed in the statements of the National Police agents who expressed that when the minor recounted the events, already eleven years old, she appreciated that "she still felt fear when remembering."
In addition, another of the agents revealed that the minor indicated to him that "the investigated told her not to say anything to her mother" and that "she felt ashamed and scared."
The dissenting vote of one of the magistrates
One of the magistrates of the Chamber, Antonio Doreste, has positioned himself against dismissing the appeal filed by the defendant's defense.
Among the points that the judge argues, he states that the victim's statement "requires the reinforcement constituted by peripheral elements" that corroborate it, which, in his opinion, "do not exist or are inconsistent."
Thus, he has added that the reference witnesses do not have "sufficient vigor." At the same time, he has defended that the existence of pornography on the accused's mobile is "frequent in males", even if it is "reprehensible", and is not "an element that contributes to the fact to be proven."
This judge states that "on top of that, it turns out that the experts do not present their conclusions in a forceful way." Thus, he adds that when analyzing the evidence "there remains a kind of rumors without any consistency" that refer to "a vague allusion that someone has been seen masturbating in the vicinity of the educational center that the minor attended and that, according to those rumors, it seems that the subject was the accused."
Thus concludes Doreste in his dissenting vote that "there is no more story than that of the young woman who, simply because she has been credible to her mother, to the police who received the complaint and to the psychologists [...], is also credible to the judicial body."
He also highlights that "the undersigned distinguishes between credibility and reliability without even the first one concurring, in my humble opinion, which is nothing more than the feeling that is perceived before the young woman's statement."