He Superior Court of Justice of the Canary Islands (TSJC) has agreed to reduce from six to four years the sentence imposed by the Audience of Santa Cruz de Tenerife in March 2021 to a man convicted of sexual assault, and who appealed under what is known as the “only yes is yes” law.
In this way the Criminal Chamber of the TSJC upholds the defense appeal and modifies the sentence imposed to four years of imprisonment as a consequence of the perpetration of the crime of sexual assault with carnal access, and special disqualification for the right to passive suffrage during the time of the sentence.
The prohibition to approach the victim of the aggression, to his home, workplace or wherever he is, is also imposed, and the prohibition to communicate with him by any means, by himself or by third parties, for one year more than the prison sentence effectively imposed, according to the order provided this Tuesday by the TSJC.
The appeal was filed on March 2 against an order of the Provincial Court of Santa Cruz de Tenerife of December 9, 2022, which denied the defendant the review of the sentence imposed.
The convicted person’s appeal was challenged by the procedural representation of the victim and by the fiscal Ministery.
The defendant’s defense has requested the reduction of the sentence in application of the new organic law of comprehensive guarantee of sexual freedom considering that it is more beneficial, and this request has been opposed by the Public Prosecutor’s Office.
The TSJC points out that the intention of granting a framework of greater protection to the victims of sexual crimes does not have to correspond to an increase in the penalties for those guilty of these crimes, even less “when the legislator is in the mind of granting a joint treatment of sexual abuse and aggression, absorbing both categories in the second, to then differentiate the penalty based on whether the aggression took place without or with introduction (rape)“.
It adds that in the face of uncertainty and interpretative doubts “we must go and take into account the ‘pro reo’ principle” and therefore opt for the interpretation that is most favorable to the accused, even more so when the value of freedom is compromised.
“The current norm is clearly more beneficial and the rule of retroactivity and analogy in favor of the accused, obliges us to apply the current norm against the one repealed because it is more onerous”, the Canarian high court specifies.
It also points out that the Public Prosecutor’s Office requested, in the event that the appeal filed by the defendant’s defense was upheld, that the defendant be imposed probation as a security measure under the terms set forth in the Penal Code, since it was not requested in the act of oral trial.
However, such a measure cannot be applied since, as recognized by the Public ministrysuch a measure was not interested in the prosecution, neither public nor private, so it cannot be imposed, points out the TSJC.
