I. Contextual and geographical element. Where did it take place?
Publicly, under the gaze of the planet, in the massive official act of the international trophy presentation to the members of the Spanish women's team, champions of the 2023 Women's World Cup.
This presentation was made by Mr. Rubiales, in his capacity as president of the RFEF, and it took place in Sydney (Australia), with other Spanish authorities present, including the Queen of Spain and Infanta Sofía (a minor).
This element is relevant because the contextual, official, public, international, and foreign country staging are elements that clearly limit Ms. Hermoso's freedom to react.
II. Relational element. Is there a hierarchy between Mr. Rubiales and Ms. Hermoso?
The answer is affirmative because we are dealing with a hierarchical relationship of professional superiority of Mr. Rubiales, as the highest representative of the Royal Spanish Football Federation (RFEF), and Ms. Hermoso who, as a professional athlete, has a special employment relationship with the corresponding sports entity that temporarily transferred the worker to the Spanish national team to participate in the World Cup (art. 66 of Sports Law 39/2022 (Law 27290/2022) —LD—), with the current RFEF protocol against sexual violence (2023) being applicable, which expressly qualifies as an act of abuse and/or harassment "kissing by force", as well as ILO Convention No. 190 (2019) on Violence and Harassment, subjectively applicable to people in the world of work "whatever their contractual situation" (art. 2) and objectively, to any act of "violence and harassment in the world of work that occurs during work, in relation to work or as a result of it" (art. 3).
The regulations on the prevention of occupational risks are also applicable, as Law 3171995 on Prevention of Occupational Risks (Law 3838/1995) (LPRL) is not excluded from these events (art. 3 LPRL Law 3838/1995), in which the transfer of the worker by the contracting sports entity occurs (art. 66 LD), acting as a kind of "user company" of the former.
The foregoing has clear legal effects for the RFEF, in terms of risk prevention (sexual and sexist violence) that mostly affect women, as it has not (really) implemented effective prevention actions and, where appropriate, protection of the player against any form of gender violence, in this case, sexual and sexist, as I will explain later.
Therefore, in my opinion, the recent resolution of the Sports Administrative Court (TAD) of August 31, 2023, which decides that there are not sufficient indications of "abuse of authority" by Mr. Rubiales, incurs in serious legal deficiencies that I will now unravel.
In the words of the TAD:
"This Court does not appreciate from the video (5) the existence of minimally sufficient evidence that shows, in the preliminary stage in which we find ourselves, well-founded suspicions of a gross, arbitrary, conscious and voluntary overreach in the exercise of the president's functions and for his personal benefit. (…)
This Court concludes that there are not sufficient rational indications of the commission of an infringement for abuse of authority under art. 76.1 of the Sports Law"
The foregoing trivializes gender violence, which is naturalized with criteria from other times that do not fit well with the Spanish social reality of the 21st century, impacted by an unprecedented act in the history of Spanish sport. It should not be forgotten that high-level sport, as is the case, has a recognized public interest (art. 11 LD 39/2022 Law 27290/2022), which has been completely ignored by this special Court, opting for the softening of the facts.
But there are also more legal and less social criteria that lead us to the same conclusion, which I summarize under two arguments.
a) First argument. The TAD emphatically states that there is no solid evidence or indication for the opening of internal disciplinary proceedings against the president of the RFEF, with this wording:
"Let it be clear that this Court does not intend to say that authentic evidence is necessary, suitable to rebut the principle of presumption of innocence, in order to adopt the decision to initiate disciplinary administrative proceedings. Instead, what is meant to be conveyed is that indications based on mere rumor or vague suspicion of the commission of an infringement are not enough to initiate proceedings (…)"
It is decided not to investigate the facts, within which a report could be requested from Ms. Hermoso to discern whether or not we are dealing with a rumor, despite the seriousness of an unprecedented event in the history of Spanish sport and despite its literal fit within the RFEF protocol against sexual harassment and abuse. And any reference to the gender perspective in the interpretative analysis that leads the Court to disregard what happened is missed, ignoring the disproportionate gender impact of sexual or sexist violence. It omits applying the international principle of due diligence in human rights matters as an interpretative hermeneutics also applicable in sports discipline, which is not outside the international, regional, and internal legal system in force in our country, as has been rightly pointed out by Professor Cristóbal Molina Navarrete, referring to art. 4 of the LOIEMH (LAW 2543/2007), art. 49.2 of the Istanbul Convention, among others. Also, art. 12.1º and 5º of the Istanbul Convention, art. 29 of Directive 2006/54/EC (LAW 7671/2006), art. 4.2 of ILO Convention 190 (7) and art. 1 (LAW 2500/1978), 9.2º (LAW 2500/1978) and 14 of the Spanish Constitution (LAW 2500/1978) (CE) can be mentioned, and jurisprudentially, the judgments of the Supreme Court (2nd Chamber) of May 24, 2018 (Rec. 10.549/2017 (LAW 46365/2018)), November 19, 2018 (Rec. 10279/2018 (LAW 166135/2018)), or December 20, 2018 (Rec. 1388/2018 (LAW 182053/2018)) among others. And in the social jurisdiction, the judgments of the Supreme Court (4th Chamber) of June 23, 2022 (Rec. 646/2021 (LAW 128570/2022)), of September 26, 2018 and November 13, 2019 (Rec. 75/2018), among others. As can be seen, the Supreme Court has already normally integrated gender justice into its resolutions, with greater or lesser scope, depending on the Chamber from which we observe.
Furthermore, the principle of presumption of innocence can hardly be affected when what is requested is not a conviction but only the investigation of events that have scandalized the world and that the TAD has dismissed by minimizing the seriousness of what happened.
In this regard, reiterating the public interest of high-level sport, it should be remembered that states have the obligation to guarantee compliance with gender risk prevention obligations (sexual violence), with sanctioning rules being part of the guarantees in the fulfillment of community and international obligations in the field of risk prevention thanks to their deterrent function, which socially ensures real (not formal) respect for and compliance with said regulations. Added to the foregoing is the gender impact of this case, which also affects the right to non-discrimination on the basis of sex.
The protection of Ms. Hermoso's health was not an option but an obligation on the part of the RFEF, which held a position close to that of "a user company", with the internal disciplinary regulations being part of the guarantees of its compliance, including its own protocol for the prevention, detection and action against sexual harassment and abuse (2018), which states: "Sexual harassment and abuse do not escape the scope of sport or the centers where it is carried out. It must be borne in mind that the relationships between professionals in the world of sport and the people who practice it are vertical, that is, they imply an inequality based on the greater power and authority held by the professional figure"
Along these same lines, in 2007, the International Olympic Committee (IOC) published a Consensus Statement on Sexual Harassment and Abuse in Sport, in which it stated: "sexual harassment and abuse in sport do not discriminate on the basis of age, sex, race, sexual orientation or disability. (…) both sexual harassment and abuse occur in any sport and at any level, and it seems to be more frequent in elite sport. Members of the athlete's environment who hold positions of power and authority are usually the main perpetrators, although athletes' peers are also often identified as perpetrators and are usually more often male than female (…)"
Recommendation CM/Rec. (2015) 2 of the Committee of Ministers of the Council of Europe on gender mainstreaming in sport is clear when it recommends:
"— promote and encourage policies and practices aimed at introducing, implementing and guaranteeing the integration of the gender perspective in all areas and at all levels of sport and establish the existence of specific mechanisms for this purpose (…)
— adopt, implement and monitor policies and measures, in cooperation with sports organizations, to prevent and combat gender-based violence against women and girls in sport, namely intimidation or physical violence, verbal, psychological, physical and sexual harassment, and abuse.
— Adopt strategies to counter traditional negative gender stereotypes and stereotypes based on other grounds of discrimination, and protect all persons who challenge stereotypes through their free choice and practice of sport (…)
— Design and implement policies and measures to prevent and combat harassment, bullying and gender-based violence in relation to the practice of physical activity, physical education and sport, and encourage schools, local authorities and sports organizations and clubs to implement and monitor their implementation; (…)
— Promote awareness-raising and initial and continuing training initiatives on gender equality, gender mainstreaming and the different needs of those involved in sport, for the staff of public authorities responsible for formulating and implementing this recommendation and for those involved in sport (…)"
Even the International Working Group on Women and Sport (IWG), at the VII Conference on Women and Sport held in Botswana (2018), strongly pointed out, among the five work priorities for the coming years, the need to guarantee safe and violence-free sports environments in which women exercise control over their own bodies.
And if there were any doubt, I have already referred to the "Protocol against sexual violence" (2023) contained in the federative regulations, which literally includes among the situations, attitudes and behaviors related to sexual violence: "kissing by force".
Let us remember that protocols for the prevention of and action against sexual abuse/harassment are mandatory tools in the RFEF according to art. 4.5 of Law 39/2022 of December 30 (LAW 27290/2022) on Sport and art. 48 of Organic Law 3/2007 (LAW 2543/2007) for Effective Equality between Women and Men (LOIEMH), since national federations, such as the RFEF, with athletes temporarily transferred to form the national team, act similarly to a business organization. And similarly, art. 29 of the LOIEMJ also requires the incorporation of the effective consideration of the principle of real and effective equality between women and men, both in its design and, and this is important, in its execution.
Let us not forget that the gender discrimination and violence of the 21st century have mutated and adapted to the times of "legal equality", operating in a subtle and underground way through opaque violence that translates into restrictions of rights for women with a harmful gender impact.
And in the case at hand, there is also the circumstance that the highest responsible of the entity that should have protected the player is the author of the forced kiss, so the action deserves, at the very least, an internal investigation by the security debtor, that is, the RFEF.
As stated in the judgment of the TSJ of the Canary Islands of February 10, 2022 (Rec. 1481/2021 (LAW 13703/2022)) regarding the violation of fundamental rights derived from the sexual harassment suffered by the worker by the contracting employer:
"It is particularly serious that the active subject of the harassment was the employer himself, who was responsible for monitoring and protecting the worker's occupational health. We are not dealing with a case of lack of due diligence in the business security debt, but with willful negligence attributable to the employer himself."
b) Second argument. On the criminal judicial procedure and internal disciplinary power of the TAD. It is said in its commented resolution:
"It is the criminal jurisdiction that is competent to assess the circumstances of the event, with the assessment and sanction of an act of sexual content with abuse of a position of superiority remaining outside the scope of sports discipline."
However, the criminal implications that the events may have are irrelevant in terms of risk prevention (gender violence), especially when it was the security debtor, through its highest representative, who was the active subject of the reported event.
Given the panorama described, it is clear that the statements made publicly by the player, accompanied by the subsequent criminal complaint against Mr. Rubiales, are more than sufficient indication to initiate disciplinary proceedings, because the initiation entails an internal investigation for the purpose of determining responsibilities that may or may not exist, which would mean the dismissal without sanction of the president.
In the social jurisdiction, the criterion that the same facts may lack criminal implications, but, on the other hand, may be the cause of even the most serious sanction (disciplinary dismissal) in the employment context, is already consolidated. Among many others, the judgment of the TSJ of the Canary Islands of March 6, 2018 (Rec. 1648/2017 (LAW 77378/2018)) can be highlighted, in matters of sexual harassment, the facts of which gave rise to a criminal dismissal order as the examining magistrate considered that the facts "do not have the characteristics of a crime" and, on the other hand, the Canarian Social Chamber upheld the decision of disciplinary dismissal of the worker taken by the company. In this case, it was proven that the worker (head of the bar) grabbed his colleague and hierarchical inferior (waitress) by the hip and used expressions such as "how beautiful you are" or "how hot you are", who finally reported him to the company. And we said in the legal reasoning of this judgment:
"In a work environment, it does not create a good atmosphere or facilitate collaboration among colleagues for male workers to tell their female colleagues that, in addition to being beautiful, they are hot, much less so when these expressions are accompanied by physical contact alien to what is socially accepted among people who lack an affective bond, since it is not appropriate in any work environment for a man to grab a woman with whom he works by the hip. Such statements are not a sign of camaraderie, because in addition to being unnecessary, they require, in order to be admitted without reproach, an express acceptance by their recipient, which has never been proven. Proof of the impropriety of the sanctioned conduct is that it only appears to have been addressed to the worker who reported the plaintiff. The dismissed worker did not grab any other woman by the hip, nor did he tell other colleagues that they were hot."
Along the same lines, it can be seen how the Judgment of the AP of Murcia of June 17, 2016 (Rec. 158/2015 (LAW 104259/2016)) confirms the criminal acquittal of a department head of El Corte Inglés for sexual harassment of two saleswomen, who were sanctioned by the company for improper conduct of a sexual nature towards the workers. It was proven in these proceedings that he habitually addressed the operators as "pussies" or "pylons", and that both were on medical leave for psychological reasons. The devaluation of women's dignity that underlies the aforementioned judgment, which describes this treatment of saleswomen as "inconsiderate", has already been the subject of broader analysis, due to its stereotypical content, in other works.
III. The element of "modus operandi". How did Mr. Rubiales kiss Ms. Hermoso?
This last element is relevant for the purpose of determining whether we are dealing with an act of sexual or sexist violence. In my opinion, this fateful kiss has peculiarities that give it a dual, sexual and sexist aspect, and although the separation between both types of violence responds to criteria of legal classification and conceptualization, the truth is that there is currently no precept that prevents the simultaneous occurrence of both types of violence in the same act.
1. Sexist violence
In addition to the unequal professional relationship, to which I have already referred, the sexist nature of the event is also clear. This is based on the stereotype of devaluation of the image of women, which emboldened Mr. Rubiales to give a surprising and public kiss to Ms. Hermoso, ensuring the desired final result by immobilizing the athlete's head with both hands. And it occurred without the player's consent (16) , as she herself has publicly stated, which leads us to speak of violence (sexist). This is better appreciated given the absence of similar precedents in the case of male players, whose bodies are less accessible than those of women, who are socialized for submission and dependence under the cover of a social pattern. On the other hand, men, educated for control and command, are more likely to react, even violently, to surprising and unforeseen situations that may jeopardize their superiority, or, where appropriate, compromise other normative patterns assigned to masculinity.
The public nature, or rather, very public nature, that accompanied the event brings it closer to the characteristics of gender-based violence, which, being more socially naturalized, is committed in a less hidden way than sexual violence.
Recall that the prohibition of discrimination on the basis of sex has its raison d'être in the will to end the historical situation of inferiority of women in social and legal life (for all, STC 17/2003 (LAW 793/2003)), the discriminatory conduct being classified by the pejorative result for the woman who suffers it, who sees her rights or legitimate expectations limited by the concurrence of a factor whose justificatory virtuality has been expressly ruled out by the Constitution, given its character as an attack on human dignity (art. 10.1 CE (LAW 2500/1978).
2. Sexual violence
With absolute respect for the final outcome of the criminal proceedings already initiated by the Public Prosecutor's Office and Ms. Hermoso, my personal opinion is that sexual violence also occurs.
The criteria required by jurisprudence to classify the facts as criminally reprehensible sexual violence, let us think, for example, of the crime of sexual abuse (prior to Organic Law 10/2022 (LAW 19383/2022)), are based on two requirements. On the one hand, an objective element of bodily contact, touching, or any other externalization or materialization with sexual significance. This objective element of bodily contact can be executed directly by the active subject on the victim's body or can be ordered to be performed on their own body as long as there is imposition.
On the other hand, a subjective or tendentious element has also been required, that is, the expression of the intention or purpose of obtaining sexual satisfaction at the expense of the victim (STS 396/2018 (LAW 114595/2018)).
The criterion used to distinguish between punishable acts and those that are not is based on the reasonableness with which an adult considers that these acts are intrusions into the area of sexual intimacy, susceptible to being rejected without consent (STS 87/2011 (LAW 2776/2011)). Thus, criminally, the essential element is the performance of acts of a sexual nature without the free consent of the person.
In the case at hand, there is unwanted bodily contact, the kiss, and it occurs without the consent of the victim.
In the case at hand, there is unwanted bodily contact, the kiss, and it occurs without the consent of the victim. On the other hand, the fact that the kiss was given on the mouth and not on the cheek shows its sexual nature, because kissing on the mouth has an erogenous, erotic and sexual content that a kiss between friends on the cheek, hand or injured arm of a girl does not have.
This is so because kissing on the mouth is an act linked to passion, sexual desire and, generally, a sign of love in the sentimental relationship between two people.
In addition, kissing on the mouth has a biological, psychological and emotional effect that translates into the release of hormones such as oxytocin, which influences basic functions such as falling in love or orgasm. Endorphins are also released, and according to the British consultancy Relate, the physiological position of the mouth makes it, among all the erogenous organs that our body has, the one located closest to the brain, and the center where sensations and emotions are produced.
According to anthropologist Helen Fisher of Rutgers University (New Jersey), regarding the act of kissing on the mouth, she said:
"We have evidence that saliva contains testosterone. And there is also evidence that men like sloppier, more open-mouthed kisses. That suggests to me that they are unconsciously trying to transfer testosterone to trigger sexual desire in women."
There are also scientific studies that measure the different interaction of brains and human behavior in a romantic kiss (on the mouth) or on the hand, which translates into greater connectivity between different regions of the brain within and between brains and also an optimized transfer of information within and outside the brain when we kiss on the mouth.
Finally, according to Professor Ignacio Camacho of the Faculty of Chemistry of the National Autonomous University of Mexico, the lips are 100 times more sensitive than the fingers and there are so many sensations caused by a kiss on the mouth that it has been assigned different biological functions: it could be the prelude to a sexual relationship but also the selection of a partner, according to this expert.
IV. By way of conclusion
In my opinion, Mr. Rubiales' non-consensual kiss is a clear practical example of dual gender violence, qualifiable as sexual violence and, at the same time, sexist violence against Ms. Hermoso.
Such reprehensible act is susceptible to deploying legal criminal effects as it can be classified as a crime of sexual assault after Organic Law 10/2022 (LAW 19383/2022) (art. 178 CP (LAW 3996/1995)), also internal disciplinary effects (abuse of authority — art. 76.1 a) LD 1990) and, of course, of a social nature (gender risk prevention — ut supra —, violation of fundamental rights and comprehensive restorative compensation —arts. 177 et seq. LRJS (LAW 19110/2011), which are yet to be determined.
Notwithstanding all of the above, the event has already had a positive social effect, worthy of note, as did the "wolf pack" case, and that is the social reaction of intolerance to macho actions such as this one, which until now went unnoticed by most of the population. It has been a clear real example of the importance of placing women's consent at the center, to avoid a "free bar" for men in accessing women's bodies, under the old stereotype of women's implicit sexual consent, which has historically made it so difficult for women to access justice.
A change in social paradigm is glimpsed on the horizon, which tends to revalue those values associated with femininity, as well as women's experiences, hitherto excluded or devalued in all human disciplines, not excluding, of course, Law and its interpretation through justice.
As Angela Davis would say, we are not accepting the things we cannot change, we are changing the things we cannot accept.