Lone shark

The male protagonist of this story hardly emerges as an exemplar of virtue. He appears, rather, as an unscrupulous opportunist, a lone loan shark more interested in sex than insanely uncompetitive interest rates

MARK NAYLER

Details of a strange and intriguing legal dispute emerged this week, in which a woman approached Spain's Constitutional Court after a judge in the Balearic Islands dismissed her case. Misleadingly, the story has been reported by some publications as proof that the country's highest tribunal - a panel responsible for making precedent-setting decisions about citizens' fundamental rights - has ruled that, in Spain, paying off debts with sexual favours is legal. Thankfully, though, it's done nothing of the sort - although the Balearic judge's decision seems questionable.

The details of the case are as follows. A woman, 38, asked her former brother-in-law, 58, if she could borrow fifteen thousand euros. He agreed without stipulating conditions, but later requested oral sex "two or three" times a week until the debt was repaid. His debtor complied on five occasions, saying she felt "psychologically obliged" to do so, before refusing to continue with the situation. Her ex-brother-in-law then demanded repayment, at which point she took the case to a local court. There, a judge found no evidence of coercion or sexual abuse on the defendant's part and noted that his arrangement with his ex-sister-in-law had been terminated as soon as she withdrew her consent.

The male protagonist of this story hardly emerges as an exemplar of virtue. He appears, rather, as an unscrupulous opportunist, a lone loan shark more interested in sex than insanely uncompetitive interest rates. The crucial issue from a legal standpoint, then, is whether his morally dubious behaviour constituted sexual abuse (i.e. an actual crime) - not whether sexual acts are a permissible way of repaying debt. Either way, Spain's top tribunal has refused to consider arguments for and against the issue, declaring that it lacks sufficient "constitutional significance".

Perhaps the Constitutional Court should hear the case, though, because the Balearic judge's decision is questionable. He characterised the arrangement imposed by the brother-in-law, the exploitative creditor, as a "freely agreed relationship" that came to an end when the woman wanted it to. Yet this characterisation minimises, if not completely ignores, the central role of debt in that "relationship".

Would the woman have performed the sexual favours if she hadn't owed her former brother-in-law money? If the answer's no (which it surely is), then the fact of her debt alters the notion of "consent" at play in their arrangement. Certainly, the ex-brother-in-law abused his power in the role of creditor - but is that (or should it be) "merely" a moral failing on his part, or an illegal act?

In other words, this bizarre case raises interesting legal and moral questions, but it doesn't show that Spain's top court has declared it legal to demand sexual favours from vulnerable debtors.