Spanish prosecutors claim sex attack was not rape as victim 'did not fight back'

Six young men have gone on trial in Spain over an attack on a 14-year-old girl in the town of Manresa in a case that has fuelled an ongoing debate over the country’s rape laws.

Prosecutors have argued they should face the lesser charge of sexual abuse rather than rape because the girl was drunk, under the influence of drugs and did not fight back.

The assumption in either law or in practice that a victim gives their consent because they have not physically resisted is profoundly problematic since experts have identified “involuntary paralysis” or “freezing” as a highly common physiological and psychological response to sexual assault.

The young men are charged with abusing the girl in a disused factory in a town in the north-eastern region of Catalonia in October 2016. A seventh man is accused of masturbating while watching and faces 18 months for failing to help her.

Critics argue they should face accusations of rape or sexual assault – raising alarm bells about why the prosecutor has not pressed for the more serious charge.

The defendants, whose ages have not been revealed, have all denied having sexual relations with the victim, although sperm from one of them was found on her clothing.

“I don’t know how that could have got there, she must have sat on something,” one said on the opening day of the trial in Barcelona on Wednesday.

A furious uncle of the girl had to be restrained by police when he lunged towards the defendants, who are on provisional release during the trial, as they left the court. He was holding a placard which said: “It's not abuse, it's rape”.

Prosecutors say the six took turns to have sex with the girl who was “obviously” under the influence of alcohol and drugs.

One of the accused is said to have told each of them: “It's your turn. Fifteen minutes each and no delay.”

The prosecution claims that although there was no consent, there was no violence or intimidation either, so the offence could not be considered as rape despite the fact the victim was not in a state to resist.

The victim’s lawyers claim that the girl was intimidated and are calling for a sentence of 15 to 20 years. However, the charge of sexual abuse carries a maximum sentence of 12 years.

The court had been due to hear statements from the girl and witnesses on Wednesday but these were delayed until next Monday.

The prosecutor says the defendants could still face rape charges depending on the victim’s testimony.

The case has become known as the “Manada de Manresa”, or Manresa wolf pack, because of the parallels it shares with another 2016 gang attack on a teenage woman which sparked national protests and an ongoing review of the country’s rape laws. The men called themselves La Manada – “the wolf pack”.

The five men were convicted of sexual abuse but cleared of gang rape charges in December 2018 for their attack which happened during the Pamplona bull running festival in 2016.

However, last month, Spain's Supreme Court increased their sentences from nine to 15 years, ruling they had committed rape.

This came after more than a year of heated protests against their initial less stringent conviction – with thousands of protesters descending on the streets throughout a case which divided opinion in the predominantly Catholic country that battles with 21st century gender reform, gender violence and the nation’s culture of machismo.

While rape must involve specific acts of violence such as being threatened with a knife or dealt physical blows under Spain’s criminal code, the case has sparked calls for changes to the law on rape and sexual abuse.

The original ruling found the 18-year-old victim’s consent was compromised when she was led into a building lobby by the men, who took turns having intercourse with her and making phone recordings of the sex acts.

Even though the judges described the woman as “stunned and unable to react,” they reached the conclusion there had been no violence or intimidation. However, the supreme court has now ruled she was simply too scared to fight back.

Between 2008 and 2015, 58 men were killed by their partners or ex-partners in Spain, compared to 488 women, a study by Spain’s highest judicial body, the CGPJ, shows.

Figures show 2017 was the worst year on record for violence against women – 158,217 women were subjected to domestic violence, an 18 per cent year-on-year rise. Some 47 women were killed by their partners in 2018.

Amnesty International previously analysed rape legislation in 31 countries in Europe and found that only nine of them have consent-based legislation in place. Those countries are the UK, Sweden, Ireland, Luxembourg, Belgium, Cyprus, Iceland, Germany and Greece. For the crime to be considered rape in the other European countries, the law requires for example the use of force or threats, despite the fact this is not what happens in a great majority of rape cases.