"An unconsensual kiss on the mouth is a crime of sexual assault." That is the majority opinion of the specialists in Criminal Law consulted by EL MUNDO and the criminal type that will probably have to face the defense of Luis Rubiales the, although suspended, still president of the Royal Spanish Football Federation (RFEF) before the National Court.

Unified sexual crimes by the Law of only yes is yes, Organic Law 10/22, the gesture in the celebration between Rubiales and Jenni Hermoso falls within article 178 that speaks of "any act that violates the sexual freedom of another person without their consent".

That last word is the first and main key to Rubiales' possible defense. "I think they will fight for consent, but with the images that are there and the words of her saying that there was not..." Ana Olalde, Professor of Criminal Law at the University of São Paulo-CEU leaves the phrase in the air aware of the complication faced by the lawyers of Luis Rubiales.

"He had to think that there was a relationship of friendship and he would think that he had his consent," says Alicia Gil, Professor of Criminal Law at the UNED, about the possible line of defense of the president of the RFEF and adds in her explanation that this complicity would eliminate the fraud, or intentionality, of the kiss.

Because, as Olalde recalls, sexual crimes cannot be committed "recklessly" there has to be that intentionality. So Manuel Cancio, Professor of Criminal Law at the Autonomous University of Madrid also insists that his defense would focus on fraud: "I did not know that this was a crime."

The criminal lawyer, Ignacio Fuster-Fabra, adds another factor to the consent in the defense of Rubiales that is that intentionality. "You have to see if it is a sexual mood or euphoria," he explains and cites some sentences in which the aggressor could see his sentence reduced because that mood was not accredited.

In judgment 490/2015 the Supreme Court says that "kisses, even on the lips, do not objectively and unequivocally have this sexual character, since they are frequent in certain family environments, even social, without necessarily involving lewd behavior, deserving of criminal conviction". However, most experts say that the majority jurisprudence of the high court does consider a kiss on the lips without consent a sexual assault.

The aggravating gesture

"It grabs him by the head and has no chance of getting out", this is how the specialists in Criminal Law consulted describe the main complication by the "piquito" that Luis Rubiales faces. "The problem is whether that gesture is interpreted as violence," says Gil about the moment of the stage during the medal ceremony.

Most experts explain that the defense of Rubiales will have to face the criminal type of article 178.4 in which the aggression is punishable with between one and two years in prison, Rubiales would never enter jail because he has no record, or a fine of 18 to 24 months.

However, if the court interpreted that gesture of the hands added to the dominant position (Rubiales is the boss of Jenni Hermoso) as violence or intimidation, the still president of the RFEF could face a sentence of between one and five years. "The defense will surely seek a fine," explains the professor at the San Pablo-CEU University.

The gears of justice are already in motion. The Prosecutor's Office will ask the National Court, in charge of instructing the case since the crime occurred between two Spaniards in a foreign country, if the fact is also considered a crime in Australia, a sine qua non condition to prosecute the fact in Spain.

If so, the defense of Rubiales would face another important problem and that is that since the National Court is competent and not a normal investigating court, they will have at least one instance less in the event that they must appeal the sentence if it is not favorable to their interests.

The videos during and after the celebration and the experts will be key in the instruction of the case. The defense must try to show that the question of the "piquito" came from the mouth of Rubiales and that Jenny consented in some way because, as Fuster-Fabra says, "this case has no chance of being filed."

  • Luis Rubiales
  • RFEF
  • Jenni Hermoso
  • Women's Football