This week one of the most high-profile cases of recent times took place in the Provincial Court of Barcelona. Above all, due to the identity of the accused, the footballer Dani Alves. The Brazilian is accused of having raped a young woman in the bathroom of the Sutton nightclub in Barcelona in the early hours of December 31, 2022. Since then, Alves has given up to five different versions of the events. In the last one, he claimed that he was very drunk on car night. Judicial experts have read the inclusion of this argument in order to have a mitigating circumstance in case of conviction. And the Penal Code specifies that those who, at the time of committing the criminal offense, were in a state of full intoxication due to the consumption, among other substances, of alcoholic beverages are exempt from criminal liability, provided that this state was not sought for the purpose. of committing the action. This scenario poses a dilemma, and it is none other than asking if it is fair that the consumption of alcohol can be considered a mitigating circumstance in a case of possible rape when the same action (being drunk) entails a crime in the event of being drunk. driving.
Like everything in life, there are nuances. To begin with, lawyer Javier Melero points out that in the case of driving there is no aggravating circumstance due to the ingestion of alcohol, but rather it is an autonomous crime. “The mitigation for alcohol and drug consumption is generic for all types of crimes. It is in the general part of the Penal Code, in article 20. But there is no aggravating circumstance for consuming alcohol while driving, what exists is a specific crime of driving under the influence of alcohol - provided that the established limit has been exceeded - and drugs.” Likewise, he emphasizes that “the mitigating circumstance for intoxication is very restrictive and difficult to prove.”
What does the Penal Code say about it? The second point of article 20 details that anyone who “at the time of committing the criminal offense is in a state of full intoxication due to the consumption of alcoholic beverages, toxic drugs, narcotics, psychotropic substances or others that produce similar effects, is exempt from criminal liability. provided that he has not been sought with the purpose of committing it or its commission was not or should not have been foreseen, or is under the influence of an withdrawal syndrome, due to his dependence on such substances, which prevents him from understanding the illegality of the act or act in accordance with that understanding.” It is for all these reasons that Melero insists that “the scope of the mitigating circumstance is very restrictive” and that it is practically “limited to accidental intoxication.”
The sentences related to gender violence handed down by the Supreme Court attest to this, according to Miguel Lorente, professor of legal medicine at the University of Granada and former Government delegate against gender violence. Lorente is part of the group of experts of the General Council of the Judiciary that analyzed all the sentences handed down by the TS in sexual violence in 2020 in adults, “and there was no case of mitigating or exculpatory due to alcohol.” Like Melero, he understands that “the mitigating factor in these cases is very difficult to apply because conduct of a sexual nature is an elaborate action.”
Noemí Martí, a criminal lawyer, sees it the same way. To begin with, she remembers, like Melero, that alcohol intake is not an aggravating factor in crimes against road safety. "I'm not more sorry for having drunk, but what they are punishing is for having taken the car while drinking," she says. "It's a crime in itself," she adds.
Also like Melero, he points out that the mitigating circumstances included in articles 20 and 21 of the Penal Code apply to all types of crimes - "except those where the fact of having drunk is precisely the crime" - and agrees that they are not "easy to accredit.”
In this sense, it mentions the assumptions included in the Penal Code. A first, set out in its article 20 and already mentioned - which raises the possibility "of complete intoxication due to the ingestion of alcoholic beverages and that therefore the person may not be responsible for the events," Martí recalls -; and a second – included in article 21 – where “ingestion slightly affects the cognitive and volitional abilities of the person.” This last article details in its first point that extenuating circumstances are “the causes expressed in the previous chapter [where article 20 is included] when all the necessary requirements to exempt from liability in their respective cases are not met.”
It is in that second case, Martí understands, where Alves's defense takes refuge. "But of course," he clarifies, "the impairment must be very well proven at the time the events were committed, that is, that on that day and at that moment his cognitive and volitional abilities were affected due to alcohol."
He states that it is not enough to verbalize in a trial that one had been drinking. “For this reason they will not apply the mitigating circumstance to you.” It must be proven “and the person who alleges it has to do it”: “The accusation has to prove the facts that are accused of you, but when you aspire to an defense that reduces to a greater or lesser extent your responsibility in an act, it is you who does it.” You have to accredit very well.”
For Melero, it is not easy to prove that a specific alcohol intake has distorted your perception of reality. “You have to undergo an analysis immediately and have a good testimony in which it is said, for example, that it is strange that you drink and commit an action of this type. It would be different if it were said that every time you drink you act that way. There the mitigating circumstance would no longer be covered.”
It is for all these reasons that the norm makes sense as long as it can be demonstrated, something that is not easy, that there was an alteration of perception. He explains that this problem is “very worked on in the field of drugs”: “It has to occur either within a period of severe abstinence or in the case of severe intoxication.” He defends that the law and the courts tend, in general, to be “more understanding with drug addicts than with alcohol consumption.”
