The Supreme Court has confirmed the 4-year prison sentence imposed on a former FC Barcelona physiotherapist for touching a football club employee without her consent during a physiotherapy session that had been prescribed to treat her for a cervical ailment.
The convicted man had worked as a physiotherapist and osteopath at the club for 30 years, first, as a coordinator and in the first division team, and in 2016, when the events occurred, as a physiotherapist for club employees. The worker suffered a blockage in the head and neck derived from the pathology she suffered and the club's doctor recommended physiotherapy treatment.
According to the proven facts, in the third session, he tried to massage the abdomen area down to the pubic area of the patient, who warned him that she had her period, at which point he stopped the massage. In the fourth session, she touched the patient's breasts and clitoris without her consent.
The convict asked her if she was okay and she answered yes to end the situation and get out of there. After what happened, the woman suffered an adjustment disorder with reactive anxiety and she was out for two months.
The Chamber dismisses the appeal filed by the convicted person against the decision of the Superior Court of Justice of Catalonia that confirmed the one issued by the Provincial Court of Barcelona for a consummated crime of sexual abuse.
In addition to the aforementioned 4-year prison sentence, the first instance sentence imposed an accessory penalty of special disqualification from practicing the profession of osteopath or physiotherapist for a period of two years and the payment of compensation of 10,000 euros for the damages caused to the woman. FC Barcelona was declared subsidiary civil liability for that amount.
The court in its sentence, a presentation by magistrate Antonio del Moral, rejects the appellant's hypothesis that his action was justified by health and points out that the victim's statements about touching her breasts and stretching her nipples, with movements that in no way can justified from a therapeutic perspective, largely deprive the credibility of the defendant's other allegations.
She adds that “if these breast massages had not taken place, I could enjoy some – scarce, in any case – chance of the argument aimed at, at least, generating doubts about the circular movements with a finger on the clitoris; but if these other rubbings are considered true, the hypothesis that the introduction of fingers, in a way that is not very compatible with sanitary practice (without gloves), into the vaginal cavity with the circular movements described by the victim, formed part of the procedure, loses credibility. treatment applied”.
Likewise, it rejects that the victim had fabricated with non-existent touching of the nipples; or that he adorned his story “with that secondary addition to give greater force to an action that by itself had an undoubted expressive potential: direct contact of the fingers with the internal part of the vaginal cavity, in a maneuver that no layman would imagine compatible with therapeutic massages".
It indicates that “these facts are accepted by the appellant: he tries to explain them with a professional justification. He doesn't have it for the other touches: that's why he has no choice but to call them false. But it is totally improbable that they have been maliciously -or unconsciously- invented and exposed by the complainant, departing from reality, with an unjustified and impossible to explain desire to reinforce the veracity of what the appellant has not denied.
The ruling explains that the argument of the Court when dealing with the therapeutic suitability of intracavitary massages "cannot be considered as an immutable acceptance that, in effect, the defendant, when carrying out these maneuvers, strictly complied with professional requirements, but simply as the indication that, although it is accepted (as it is accepted) that this type of massage could be indicated in some cases and could even be so in the specific case, the criminal nature of the facts would not vanish, by exceeding the consent given by the victim ”.
It adds that “they are acts of sexual content not legitimized by a non-existent consent. It is a leap into the void to say that having not made an express protest -except for discomfort due to menstruation- in the previous session and going to the next appointment, consent for those peculiar intravaginal massages had to be given of course. Neither can silence be branded as consent before an ambiguous mention "now, the interior"; "Now we will work the internal".
The court considers speculation about a conspiracy by the company or some of its employees using the victim to achieve his dismissal as “intricate and unsustainable”. In this sense, it indicates that "the victim was encouraged to file a complaint by Club personnel, nor does it diminish the credibility of her account nor, of course, does it deprive the complaint of effectiveness as a required condition for prosecution."
