“The Manresa Wolf Pack and the Spanish Criminal Code” by Magistrate Lara Esteve

On October 31, 2019, the Court of Barcelona (Spain) published the judgment of “La Manada de Manresa” (the Manresa Wolf Pack).  It sentenced 5 men as perpetrators, each of them, of a crime of continued sexual abuse of a child under 14, who was defenseless due to the intake of alcoholic beverages, with a prison punishment of between 10 and 12 years.

This judgment, like previous ones similar to this one, caused great mobilizations in a considerable part of the Spanish society: it is not understood how it is possible that today, cases like these are not considered sexual assault.

The Istanbul Convention of 2011, ratified by Spain in 2014 (and which is, therefore, already part of our legal system), states that any sexual attack against a person without their consent is a crime of sexual assault. Therefore, it centers the criminal classification on the absence of consent, not on the previous behavior of the victim (if she is intimidated or if she is drunk).  The Istanbul Convention understands that “consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances.”

However, the regulation of the Spanish Criminal Code is different from the Istanbul Convention. In the Spanish Criminal Code, we see two types of sexual attacks: sexual aggression and sexual abuse (sexual aggression being more severely punished).

In both cases, the victim’s sexual freedom and indemnity are attacked.  The difference between aggression or abuse is in the use of violence or intimidation to consummate the crime: if the aggressor uses violence or intimidation, it will be considered as sexual aggression. If the aggressor does not use any of those, it is sexual abuse.

In this way, if the sexual attack on a woman is carried out without her consent because she is deprived of consciousness (due to drugs, alcoholic beverages, medications, among others), according to our Criminal Code, the attack will not be considered as aggression, it will be sexual abuse. It is not relevant how the victim has arrived in that state: in fact, article 181.2 of Criminal Code punishes as sexual abuse when the crime is committed “by annulling the consciousness of the victim using drugs or any other natural or chemical substance suitable for this purpose.”  Thus, when the aggressor, taking advantage of a preconceived plan, has provided drugs or consciously and voluntarily has alcoholized the victim to commit an attack on her sexual freedom, the crime will not have the qualification of aggression (more severely punished). It will be sexual abuse. However, I ask myself: if the girl who was sexually assaulted in Manresa had been conscious, would she have tolerated, consented and accepted that five boys do that to her? Or was that circumstance, that is, that she was deprived of sense, which the aggressors took advantage of to commit crimes against her?

We need an urgent review of the Spanish Criminal Code. The objective is to adapt our Criminal Code to the European laws, in accordance with our Constitution (article 96.1).

We have another problem in Spain we need to study: training in equal justice.  Judges are part of society. We have been educated in a system in which real and effective equality for women and girls with respect to men is far from being achieved.  Training in equality and in a gender perspective should be the path taken by legal operators to bring the norm closer to the social reality of the time in which they must be applied. Applying a gender perspective is not prevailing.  It is not prejudging.  It is to apply the right.  Because judges do not impose crimes and penalties automatically; we interpret the rule according to the specific elements of each particular case.  And that it is what the gender perspective requires: that we do not forget that each case has its own particularity, that each situation requires a detailed study, and that the norm will be applied to assess and weigh in every detail.

The Spanish Supreme Court has written some recent judgments about sexual violence (217/19, 282/19 -case of the “Wolf pack of Navarra”-). These sentences have already opened an important point of view in the application of the norm based on the gender perspective. These cases introduce the element of “environmental intimidation”, or recognizing that under some circumstances of pressure, the victim can become paralyzed and succumb to the author’s will as a survival mechanism.

The Spanish Supreme Court also reminds us of a fundamental element: we are European judges, so the rules that bind us are not only the internal ones (the Criminal Code). We need to incorporated European laws in our sentences, in our own right, like the Istanbul Convention, or the jurisprudence of the European Court of Human Rights (ECHR).

It is obvious that judges are linked to the laws and only the laws. However, justice disconnected from social reality is not real justice.  We have to move from a paper justice to a digital justice.  We have to integrate the European law in our legal system and we need to get the gender perspective to be applied by the judges because our goal is to achieve an objective, egalitarian, and real justice.

And one more thing. We should stop talking about the five convicted as “Wolf pack.”  The pack refers to a group of animals.  And animals attack by necessity or defense.  They are not cruel, they don’t attack their peers for fun.

This blog post was prepared by Magistrate Lara Esteve, Third Instance and Instruction Court with competence in gender violence of Carlet, Spain. The views presented in this article are those of the author and do not necessarily represent the views of the IAWJ.