The Superior Court of Justice of the Canary Islands (TSJC) has revoked a conviction for sexual abuse by doubting the victim’s testimony, to which the court that directly tried the case, the Las Palmas Court, did deserve “all credibility”, as well as the psychologist who examined her.
“The victim has declared in plenary with full sincerity, corroborating his version with peripheral data, both the witness statements and the psychological report. For the Chamber, the testimony of (the victim) has deserved all credibility,” argued the Hearing in the sentence for which he sentenced the man who forced him to perform fellatio to four and a half years.
The proven facts of the case are these: On December 6, 2018, the complainant, who was 19 years old at the time, met a boy, Edgar BR, 18, in a nightclub in Las Palmas de Gran Canaria, with whom she danced, went out out on the street and kissed, until he started to feel bad.
The complainant specified – and it is also considered proven – that at that time, the defendant put his hand to his genitals, but she refused and asked him to accompany her back to the nightclub, because he did not know the city (he was not from Gran Canaria). Instead, he led her to another street, grabbed her by the hair, and shoved his penis into her mouth, until she faked gagging.
When reviewing the case, the TSJC does not change the proven facts. In fact, it goes so far as to say that it “does not dispute the appreciation” of the Hearing on the victim’s statement during the trial.
However, the Criminal Chamber of the High Court, formed in this case by its president, Juan Luis Lorenzo; his predecessor in office, Antonio Doreste; and Judge Margarita Varona understands that in this proceeding there are “certain facts and circumstances” that generate “a reasonable doubt about the lack of consent (…) and that have not been taken into consideration.”
These doubts directly affect the credibility of the victim’s testimony, which for the magistrates who directly tried the case was full. And they are based not on the account of proven facts of the sentence, but on the contradictions that the TSJC appreciates between what the woman said to the Police, in the investigation and in the trial.
Nor do they consider their conduct after the forced fellatio compatible with the convicting account: “It is not logical,” says the Criminal Chamber that, when she saw her friends, the woman did not run away, but allowed the accused to accompany her until they, nor “is it possible to understand that after that inconsequential sexual act and with the complainant already with her friends, when a police car passed by the place (…) she would not want to call her agents when one of her friends he raised it. “
The TSJC also supports its doubts in the behavior of the accused, who did not leave the place, but returned to the nightclub and then approached where the complainant was. And he recalls that, when he was arrested, he asked “that the surrounding security cameras be examined to clarify what happened.”
After expressing its doubts about the credibility of the victim, the Criminal Chamber says that it must be “put on record”, because “no mention is made of it in the sentence” of the Provincial Court, that the “exculpatory” statements of the accused before the investigating judge and during the trial “they were persistent.”
“His statement is firm and detailed and in the (statements) provided by it, the same anguish and affliction is observed as that shown by the complainant,” adds the TSJC.
In these circumstances, he explains, he appreciates “a reasonable doubt about the concurrence or not of the consent of the complainant, of 19 years at the date of the facts”, which leads him to acquit the defendant by the legal principle of “in dubio, pro reo “.