The Valencia Provincial Prosecutor’s Office has appealed the order of Court No. 21 of Valencia, which has refused to investigate as a possible hate crime the attack suffered by a bisexual man when he was riding on a motorcycle. The defendants called him a “fucking fagot” and threatened him by saying “we have seen your cocksucking face from the car” or “if you call the police we make you straight as hell. I’ll kill you”, but the magistrate shelved the investigation in which He refers to hate crime with arguments such as that the LGTBI bracelet worn by the complainant is being worn by “more and more sympathizers” or that homophobic insults uttered are heard “repeatedly in heated discussions” regardless of sexual orientation.
A cry of “fag” or the sexual orientation of the victim will force to focus the investigation as a possible hate crime
The Hate Crimes section of the Valencia Prosecutor’s Office, where the events occurred, does not share the decision of Judge Nieves Molina, and considers that the events “meet the requirements” of Article 510.2, which persecutes those who “injure the dignity of people through actions that involve humiliation, contempt or discredit “for their belonging to the group.
The action “is in itself sufficient to injure the dignity of the injured party, insulting him in a cruel way, to belittle him, and all this for one of the reasons assessed in the precept, such as his sexual orientation or identity,” reasoned the Prosecutor’s Office in the reform resource, to which elDiario.es has had access. For this reason, it asks the court to agree to investigate the accused for this reason, although it does share the decision of the judge to classify the events as mild and not serious threats and to file the crime against moral integrity, as requested by the complainant. In the latter case “nothing could improve the magnificent order issued”, believes the prosecutor Héctor Melero, who signs the appeal.
The events date back to last February, when Isaac Guijarro was riding his motorcycle through Valencia. According to his account, he was “approached” by two men in a car that was “in parallel” and “approaching a few centimeters” and seeing them make fuss, look at him and move their lips, they came to a red traffic light. At that point they lowered the window and made the insults “understandable.” Guijarro reproached them for “their attempt to run him over” and when asked why, they responded “for a fucking fagot. We have seen your cocksucking face from the car.” When they threatened to call the police, they blurted out: “If you call, we’ll make you straight as hell. I’ll kill you.” During the episode they uttered “dozens of insults” and “stalked” the motorcycle “approaching a few centimeters.” When he saw that he was trying to take a photo, one of them got out of the vehicle and tried to take his mobile, always according to his story.
The attacker “had many insults at his fingertips”
Regarding the expressions uttered, the Prosecutor’s Office argues in its brief that the investigated “had many insults at his disposal and many threats at his disposal derived from the extensive lexicon with these connotations in our language”, but that he chose those contained in the order, ” There is only one explanation, that on the part of the investigated party there was the full will to despise and humiliate the complainant by using his sexual condition. ”
This is also defended by Guijarro, who is the legal director of Olympe Abogados, a law firm specialized in these cases, and who has also appealed the decision. In his opinion, the attack occurred because of his sexual orientation and how the accused perceived him: he is bisexual “with a feather,” he describes, and among other things, he wore painted nails, long hair and a visible LGTBI bracelet. For the Prosecutor’s Office these are “indications”, the first, “very weak”; the second “more than enough” to “be able to affirm that he belongs to the LGTBIQ collective” and that although there are “discussions and insults” that occur “as a consequence of the nerves derived from driving motor vehicles […] the reaction of the investigated is absolutely intolerable because after noticing the indications “he proceeds to insult Guijarro in these terms.
The judge, for her part, used these elements as a basis for filing the investigation and defended that wearing the rainbow symbol on the wrist “does not indicate it or identify it sexually” because there are increasingly “more numerous” people “sympathetic” to the LGTBI movement and painted nails “are not a revealing sign of the sexual condition”, rather “it is closer” to people called “alternatives”.
Guijarro recalls in his appeal that in this type of crime the selection of the victim is produced “by the social affiliation that links him to a certain group” and elements such as clothing, aesthetics or any type of symbol are “polarization factors” that oblige at least the State Security Forces and Bodies to direct the investigation towards the possible hate crime.
The perpetrator and victim do not need to know each other previously
Neither does the Prosecutor’s Office agree with Molina in the part of his car in which he rejects the crime because “there is no evidence that the occupants of the vehicle knew” the complainant, so “his activism in the LGTBI case is totally unrelated.” Something that, the Public Prosecutor explains in the appeal, “is not necessary for the consummation of the crime”: neither the “prior knowledge” of the victim “nor of his belonging to the groups mentioned in the precept”. In fact, as defined by the Ministry of the Interior, the victim is chosen for his “connection, sympathy, filiation, support or belonging” to the group, that is, it does not even need to be LGTBI, but also, the belonging can be “real or perceived “on the basis of evidence.
The prosecutor’s appeal does coincide with the magistrate that “hatred was not being incited towards the members of the group to which he belongs” because “he was being disrespected on an individual basis.” An argument that serves the Valencian Hate Crimes section to ensure that precisely for this reason “we are not facing a 510.1 crime”, which persecutes “those who publicly encourage, promote or incite directly or indirectly to hatred”, but rather before 510.2 ” because this is the only crime of result and not of danger contained within hate crimes. ”
For his part, Guijarro defends that there has been a crime against moral integrity, contained in article 173 of the criminal law, and another of 510.2. It considers that there was an intention to “undermine” his moral integrity and dignity, in the open street and voices and in an act of “gratuitous violence” both verbally and physically (“The defendant getting out of the car and facing a few centimeters”) .