Netflix has just released the documentary about the violation of La Manada dels Sanfermines. A sexual assault that stirred consciences, because it put the focus on the aggressors and not on the victim, and lit the first flame of the wick of the law of only yes is yes. A rule later questioned, for having opened the door to freedom for more than a thousand rapists. And when it seemed that the waters were returning to their course, the sentence in the Dani Alves case, for many more benevolent than expected (4 and a half years in prison, compared to the 9 requested by the Prosecutor's Office), has once again sown doubts on the judicial response to sexual assaults. There is no better time, then, than an 8-M to put yourself in the shoes of a magistrate to better understand how they cope and manage these ups and downs in their world. Cristina Ferrando, magistrate dean of the courts of Barcelona, answers.
The only yes is yes law led to criticism, due to the reductions in sentences, from a sector that called the judiciary, with a majority of women, sexist. Could or can anything else be done?
The preparation of a law and its approval corresponds to other powers of the State. The courts have the function of applying it with legal technique. And that's what we did. It is clear that the rule had technical flaws that resulted in the same legislator amending it months later. We had to revise numerous convictions, reduce sentences and issue freedoms, but all with legal criteria.
How do you deal with harsh criticism if everything complies with the law?
We judges are used to having higher bodies review our sentences. Any magistrate knows, moreover, that his decisions are subject to criticism. Criticism is healthy in a State of law. Defame, manipulate and disqualify, no. But to criticize, to provide different views with arguments, of course yes. What happened with this law was a very irresponsible maneuver on the part of some politicians who tried to spread the idea that judges benefited sexual aggressors for sexist reasons. Over time, it is clear to me that society understood that the problem was not caused by the judges.
And when it seemed that the waters calmed down, with the law, the sentence comes to Dani Alves...
This sentence is a reasoned judicial decision. It applies the rule most favorable to the accused, the one that provides for a lower minimum penalty, applying the initial version of the law of only yes is yes. The mitigating factor for repairing the damage is applied as a simple and unqualified mitigating factor and is applied with technical and jurisprudential criteria, assessing the circumstances of the case. In addition, it imposes 5 years of supervised release and 9 years of estrangement.
There was also criticism, even from the Association of Journalists of Catalonia, because much of the hearing was held behind closed doors.
In the Alves case, the media were able to provide complete information about the trial and the sentence. And the decision, which admits an appeal as you say, is a very technical and motivated ruling. Regarding the trial, the court made a great effort to guarantee the protection of the victim and his privacy without detracting from the procedural guarantees of the accused, which is complicated in such media cases as this one.
What has changed during the last two decades in the treatment of women victims of male violence in the courts?
What has changed is that we have ugly violence, that we have specialized courts, that the holders of these courts are specialists in the matter, that we have permanent training in gender violence and from a gender perspective, that the Judicial School has incorporated training transversal from a gender perspective as well as specific training on violence against women, that society demands more intervention and reports more, that resources have been increased and the catalog of support professionals has been expanded in the judicial fight against this chakra...
But sometimes the system fails. Does it hurt especially when you fail to anticipate a situation of risk for a victim and there is an assault because a protection or restraining order was not issued at the time?
If I may, getting it right is not the verb that defines what we do. Any decision, including a restraining order or a protection order, is based on the information available at the time of adoption: statement of those involved, witnesses, elements of investigation, forensic assessment... Does this allow any future behavior to be predicted? No. Can we do prospective justice? No.
Do you think that the sentence of La Manada (the documentary has just been released on Netflix) marked a before and after in the fight against sexual assaults?
I think it allowed more attention to be paid to sexual assaults and that there was more interest in what response, as a State, is given to this criminal phenomenon.
Consent, to which the ruling in the Alves case pays special attention, is it a good tool to get more convictions?
Consent has always been central. Non-consensual sex has always been a crime. The novelty of the only yes is yes law has to do with, in summary, the elimination of abuses (everything is sexual assault), the change in some penalties, the regulation of more resources to care for victims... but not with consent, which has always been at the center of the legal debate.
And about the false allegations?
I refer to the data from the Prosecutor's Office, 0.01%, which are the cases in which a firm sentence has been handed down for a false complaint.
