The First Section of the Court of Navarre has sentenced to 17 and 16 years in prison three of the five accused of a group rape perpetrated in Orkoien on November 29, 2019 on a woman who has a degree of mental disability of 67%. The court, which has acquitted the other two defendants, appreciates the existence of “environmental intimidation” in the two crimes of sexual assault that it considers proven, as reported by the Superior Court of Justice of Navarra.
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In the sentence, which can be appealed before the Civil and Criminal Chamber of the TSJN, the magistrates consider that, after a sexual relationship maintained by one of the three convicts, with the consent of the victim, the other two convicts carried out paths violations.
For this reason, the Court condemns the two to 9 years in prison as perpetrators each of their respective crime of sexual assault, as well as 8 more years as necessary cooperators of the crime of sexual assault committed by the other. Regarding the participation of the first defendant, although the judges consider that his sexual relationship was consensual, they impose 16 years in prison -8 for each of the other defendants- as a necessary cooperator of the two crimes of sexual assault.
The three defendants must compensate the victim with 100,000 euros, who will not be able to approach or communicate with her for 15 years the first two and for 13 years the third.
They contacted her through a social network
In November 2019, the victim, who was 23 years old at the time, contacted one of the accused through a social network. In the course of the conversation, he got the young woman’s mobile number. Later, this defendant passed the phone number to another defendant. With the intention of meeting her and maintaining a relationship with her, the defendant contacted the victim on the 25th, 26th and 28th. Finally, they arranged to meet for the 29th.
At about 9:37 p.m., according to the sentence, the three convicts and the victim went to a park. At one point, the defendant offered the young woman to move away to an area behind some bushes to have some kind of sexual relationship, to which she voluntarily agreed. After having two consensual sexual relations with this defendant, the other two defendants carried out their respective sexual acts against the woman’s will. The fourth defendant was in the vehicle in which they had arrived at the town and, according to the court, it has not been proven that the fifth accused had participated in the sexual assault.
The victim, who was examined by a forensic doctor on November 30, had vaginal lesions. As a result of the events, the complainant suffers from post-traumatic stress disorder. In the trial, held behind closed doors last June, the prosecutor requested a total of 54 years in prison for four of the defendants (15 for each as perpetrators of a crime of sexual assault and 13 years as necessary cooperators of the crimes perpetrated for the other three). For the fifth accused, he claimed a total of 52 years (13 for each crime as a necessary cooperator). The defenses, for their part, demanded acquittal.
The First Section of the Hearing highlights in the judgment that the complainant presents characteristics that make the assessment of her testimony “especially difficult”, due to the language and maturation delay that she presents. “Now, despite said disability and the aforementioned characteristics of the complainant, this does not prevent her from being able to make an account of the events experienced by her and that said account may be effective and sufficient to overcome the presumption of innocence, not Despite the difficulties involved in evaluating it, “the judges maintain.
Regarding the elements that corroborated the victim’s testimony, the Hearing indicates that the presence of the accused in Orkoien, at the place and time of the events, is “undisputed”. Likewise, two of them admitted at the trial that they had had some kind of sexual relationship with the complainant. “Ultimately, in relation to the persistence of the incrimination, it is true that the testimony presents limitations, and this should be assessed with the prudence required by the complainant’s disability and without forgetting the multiple statements that she has had to make, not following the regarding the recommendations to be taken into account in relation to the way of receiving statements from people who denounce events such as those at hand and, especially, if they are people who have a disability, “argue the magistrates.
The court, however, considers that there is not sufficient evidence to affirm, as the accusations maintain, that all the accused were aware of the victim’s handicap, as well as that there was a prior agreement between all of them for the execution of the sexual assaults. “It is true that several other witnesses and experts affirmed that his disability is immediately appreciable, such as the gynecologist or the forensic doctor who initially treated him. This Court, upon receiving a statement from the complainant at the trial, did not find in her, at first sight, when beginning to answer the questions that were formulated to him, the difficulties that, later, they could be verified “, raise the judges.
Ultimately, the magistrates add, it is difficult to conclude that there is sufficient evidence base to be able to affirm that there was prior knowledge of said disability on the part of the accused and a concert between them to act abusing that disability or taking advantage of it and therefore it from their vulnerability. In any case, it must be taken into account, the magistrates emphasize, that in cases such as the present one, in which there are aggressions by several subjects, it is clear that there is an effective decrease in their response capacity, giving rise to an qualitative increase in the intimidation of the victim and the seriousness of the situation. “There was, therefore, in this case, intimidation, even environmental,” ditch the Court.
On the contrary, the court does not appreciate evidence for the aggravated subtype contemplated in the Penal Code to have committed the acts against a person who is in a situation of special vulnerability. The magistrates do not see “sufficient evidence base to be able to affirm that there was such prior knowledge of the victim’s disability by the accused and a concert between them to act abusing that disability or taking advantage of it and therefore their vulnerability “.
Nor does the Court apply the aggravated subtype of having acted in a group, since it is precisely this joint action that produced the determining intimidating effect to qualify the facts as a sexual assault. As he explains, assessing this circumstance “would mean evaluating the same action with a double aggravating effect, applying the same fact twice, granting it a double aggravating effect, a double punishment, which would not conform to the prohibition of non bis in idem” ( a principle that consists in the prohibition of the same act being punished more than once).