The Provincial Court of Madrid has sentenced a man who had sexual relations without a condom with a woman to two years in prison for a crime against sexual freedom despite the fact that he had agreed to use it due to her fear of becoming pregnant or contracting sexually transmitted diseases. sexual transmission.
The sentence condemns him for a crime of sexual abuse, understanding that the decision to dispense with the condom represents an attack on the sexual freedom of the other person participating in the relationship. The woman, the text states, "had not previously consented to any kind or form of intimate contact, but rather she had imposed the use of condom protection as a limit or condition."
The sentence can be appealed to the Criminal Chamber of the Superior Court of Justice of Madrid.
As reported by the Superior Court of Justice of Madrid (TSJM), Section 15 of the Madrid hearing condemns the accused for a crime against sexual freedom in the form of "stealthing" (stealth in English), about which there is little jurisprudence in Spain and which consists of not using a condom during the entire relationship or part of it despite having been agreed upon or imposed by the couple as a condition when giving consent.
The magistrates do not give veracity to the testimony of the defendant, who denied having agreed to use a condom, since "his own statement incriminates him" and "he gives himself away because he defends one thing and the opposite" and his mental disorder does not exonerate him.
That is why he condemns him for a crime of sexual abuse under article 181.1.4 of the Penal Code, the most favorable for him according to the law, and details that it is a case of "stealthing", consisting of "the surreptitious withdrawal, in or not using the condom with the same secrecy during all or part of a sexual relationship, despite having been agreed upon or imposed by the couple as a condition for giving consent." And he cites the "scarce" judicial precedents on this type of crime.
The Chamber applies the mitigating circumstances of reparation for the damage and psychological alteration of the accused - he suffers from schizoid personality disorder - and sentences him to two years in prison, five years of supervised release, not to approach the victim or communicate with her for four years and not to work with minors for seven years.
The accused "had abundant indicators that warned him of the eventuality of the criminal nature of his conduct," says the sentence, which details that the woman warned that she would not have that sexual relationship without a condom.
"He knew and understood perfectly what the code was" that the woman demanded, and "he made the complainant believe that she was going to put on the condom and the determining factor is that she did not do so, without there being any cause to justify it," add the magistrates, who thus see fraud in the conduct of the accused.
The sentence relates that the accused and the victim met through a contact application in the second week of June 2022 and talked about their sexual experiences, going so far as to talk about barrier methods and the prevention of sexually transmitted diseases, "theme that worried the woman a lot.
On June 14, they shared episodes of sexual intimacy without penetration and she told the man a series of guidelines that had to be followed in the context of their relationships: he could not kiss her on the mouth, the word "fuck" could not be pronounced, and in her place had to be said "F", and vaginal penetration had to be with a condom, "the condemned man telling her that he would use it with her."
Finally, the woman gave him permission for penetration and understood that the man had put on a condom, but at one point she verified that this had not been the case and went into shock, according to the proven facts. The accused apologized, acknowledged that he had not used a condom and that "it had all been a misunderstanding."
She left and went to the La Paz hospital for a gynecological examination in which she had "nervousness and a tendency to cry", after which she was treated at the Pilar Estébanez 24-hour crisis center and the Benita Pastrana comprehensive center against sexual violence. . She is currently undergoing treatment with psychotherapy in a specialized center.
The accused suffers from a schizoid personality disorder and has handed over 4,400 euros to the court as compensation for the damage.
The judges of the Provincial Court of Madrid maintain in the sentence that if the convicted person understood and accepted all the conditions imposed by the woman, as he recognized in the plenary session, the code of behavior previously established by her in which there were certain words that were not could be pronounced, certain phrases and touches that could neither be said nor produced, logically and rationally he must also have used a condom to carry out vaginal penetration, since of all the rules he assumed and abided by, this was the most important for him. the woman.
