Dani Alves and Spain’s Consent Law

Introduction

During Holy Week, as is customary, a prisoner in Málaga was released pursuant to a long-standing tradition dating back to 1756. The prisoner is selected through an agreement between political authorities, the prison service, and the religious brotherhood “El Rico,” and is typically someone convicted of a minor offense who has shown good behavior and already served most of their sentence.

Another individual released during Easter was former football star Dani Alves, who was freed from pre-trial detention pending the outcome of his appeal in the Court of Appeal.

The conviction and the new consent law

Dani Alves was convicted of sexual assault and sentenced to four and a half years in prison, €150,000 in damages, and a restraining order, in accordance with the new consent law that I have discussed previously.

The judgment is very well written and pedagogical in its review of the legal provisions, the sequence of events, the assessment of evidence, and the elements required to issue a conviction.

Key legal findings

The court finds that penetration using force meets the requirements for sexual assault without consent and that it is not necessary for physical injuries to occur or for the victim to engage in “heroic resistance.” Notably, in this case there were injuries to the victim clearly indicating the use of force, and the accused did not deny penetration.

The court further notes that consent may be withdrawn at any time and that consent must be given for each specific act. The fact that she, according to Alves’s lawyer, danced in a “flirtatious manner” does not constitute consent to vaginal penetration. Regarding the victim’s credibility, the court acknowledges that some statements do not fully align with the evidence presented, but at the same time finds no reasons or motives not to believe her. The court adds: “From all that the victim has stated, from the medical certificates submitted, and from the psychological and psychiatric reports, we conclude that the complaint, at first glance, would bring the victim more problems than benefits.”

The court also emphasizes that in sexual assault cases there is no presumption of truth in favor of the victim, nor any legal basis for her testimony to carry more weight than the defendant’s. In this regard, recent legal reforms in the area of sexual freedom offenses have not changed the standards for evaluating evidence. No priority is granted to the complainant’s testimony over the defendant’s, and the burden of proof remains with the prosecution.

With respect to the accused and his version of events, the court states that because the defendant has no obligation to testify, a lack of credibility, inconsistencies, or discrepancies between his account and what actually happened should not be held against him in the assessment.

Provisional release and public reaction

Alves was released on €1,000,000 bail, had both his Spanish and Brazilian passports withdrawn, and must report to the court every Friday. The decision to release him pending the appellate judgment has sparked large protests, with claims that the ruling appears to show that one may commit rape if wealthy.

The court, however, does not consider there to be a risk of flight and therefore finds no grounds for pre-trial detention until the judgment is final. Unfortunately for all parties—regardless of the ultimate outcome—the appellate decision will most likely not be handed down for 18–24 months.

Assessment of the courts and the consent law

Although procedural timeframes are far too long in Spain, my view is that the courts generally have high competence in sexual offense cases and evolve in step with society. Even though the consent law does not change anything strictly legal (the prosecution still bears the burden of proof), it is an important political signal and a significant step forward for equality.

This article was originally published in Swedish in Dagens Juridik on 2024-05-02 here: https://www.dagensjuridik.se/nyheter/kronika-om-dani-alves-och-den-spanska-samtyckeslagen/