Andalusian High Court reduces man's sentence for sexual assault to six years

The High Court of Justice of Andalucía (TSJA) has reduced a man's prison sentence for sexual assault from eight to six years. According to the investigation, he violated an acquaintance who was intoxicated at the flat of a friend of the defendant's in Malaga in September 2021.

The incident happened when the defendant, accompanied by two young Belgian women and a friend, encountered the victim and two friends of hers outside a nightclub. After greeting them, he invited them to continue the party at a friend's house.

Once there, they went to the building's rooftop, where the party was taking place. The victim began to feel "very unwell and dizzy" from drinking and smoking, so a friend and the defendant accompanied her to the flat. She fell asleep and the defendant told her friend to go back to the party, saying he would "take care of her".

As stated in the initial ruling, the man took advantage of the situation to sexually assault her. Although at some point the victim woke up and told him to leave her alone, she lost consciousness again. The second time she woke up, she noticed him touching her "at which point she grabbed his hand and pulled it away".

The woman repeatedly asked him to leave her alone. In the morning, she told her friends about what had happened and asked them to leave quickly.

Since that incident, the woman has been in psychological treatment, while the man has been convicted of sexual assault, involving intercourse, of a person in a particularly vulnerable situation.

In addition to the eight-year prison sentence, now modified, the Malaga court imposed a 13-year restraining order banning him from approaching or communicating with the victim and an eight-year period of supervised release, with the obligation to complete a sexual re-education programme. He was also ordered to pay the girl 25,000 euros in compensation for the emotional distress and the emotional damage she suffered.

In response to this sentence, the defence lodged an appeal with the TSJA, which has now upheld it insofar as it finds that the aggravating circumstance of the victim's particular vulnerability should not have been taken into account. The ruling had based this on the fact that she was in a semi-conscious state due to alcohol and hashish and in a situation of isolation as she was alone in the flat.

The TSJA has removed the specific aggravating factor of particular vulnerability and replaced the eight-year prison sentence with a six-year sentence, stating that "a clear situation of isolation cannot be established" and that "the fact that the victim of a sexual assault is in a state of unconsciousness or semi-consciousness does not in itself justify the aggravating factor of vulnerability".