In January, Brazilian football player Daniel Alves was preventively imprisoned in Spain following allegations that he had sexually assaulted an unnamed woman in a nightclub in Barcelona, on the week of New Year’s Eve. With Alves making contradictory statements to law enforcement and the discovery of footage corroborating the victim’s testimony – at least to the extent where Alves and the victim were still visible on CCTV cameras– Alves’ conviction seems more inevitable with each new development.
Criminal lawyer Leonardo Pantaleão told CNN News Brazil that Daniel Alves’ preventive imprisonment can “last up to two years” before his trial. Over recent years, Spain has come into the spotlight regarding the worldwide conversation on sexual assault and the related measures that should be put in place. The Sexual Consent Legislation that was enacted in Fall 2022, known as the “Only Yes Means Yes Law,” was considered by many journalists a ‘landmark’ law following the notorious 2016 La Manada (“wolf pack”) sexual assault case where the verdict was seen by many citizens as too lenient. However, after the law was passed, it was observed that its strict code and fine print left far too much room for interpretation –in addition to a legal loophole that could leave the door open for convicted offenders and their attorneys to walk through.
A brief overview of Sexual Assault Legislation in Spain in Recent Years: the Wolf Pack case
In August 2022, the Spanish Congress passed the “Only Yes Means Yes Law” following a series of protests and political movements that took place in the wake of the “wolf pack” gang rape case – a rape trial involving multiple perpetrators that grew to infamy and wreaked uprisings due to the defectiveness of Spain’s judicial system.
The events of the wolf pack case took place in the annual Pamplona festival of the running of the bulls; a festival with a seedy, promiscuous reputation. There, an eighteen-year-old university student found herself alone after losing sight of her friends and was cornered into a small talk by José Ángel Prenda, who had come to the festival with four friends also in their mid-twenties that referred to themselves as “la manada” – the wolf pack. The five men led the young student into a nearby flat without giving her time to share with others where they were going and committed the offence.
The trial went on for two long years, by the end of which the five men had not been acquitted of rape but found guilty of “sexual abuse” —a much less severe offence at the time— and sentenced to only nine years in prison instead of the usual 22-25 years seen in sexual assault trials. The concept of consent was distorted in court by the defendants’ attorneys, who successfully argued that the men had not used violent force, and the crime was not considered rape. Thus began one of the most famous feminist uprisings in recent Spanish politics, as “the ‘wolf pack’ case inspired widespread anger and protests against sexual assault laws in Spain.
A Legal Loophole
The landmark law passed in 2022, over six years after the assault, states: "Consent can only be considered consent when it has been freely manifested through actions that, in accordance with the circumstances, clearly express the person’s wishes.” In other words, it removes the discrepancy between sexual abuse and assault by determining that explicit consent, rather than default assumption, is the deciding factor in sexual violence cases and any sexual act performed without it is rape.
However, this law left room for a loophole: according to Spanish media, this new legislation can mean reduced sentences for already convicted sexual offenders. The blurry lines of the law establish lower minimum sentences for sexual assault, and, in accordance with the Spanish criminal code, if a new law is introduced it can be retroactively applied to convicted offenders depending on whether they stand to benefit from it.
Irene Montero, Spain’s Equality Minister who put the law in effect, said in a statement that this could happen if “machismo [made] some judges apply the law incorrectly” – a defence that, in the words of university professor Carlos Flores, “provoked uproar among the legal profession” and “put all the blame on the judges, and did not admit a mistake.”
The News This Month: The Sexual Assault Allegation against Alves
According to the Spanish newspaper ‘El Periódico,’ Alves invited the victim and her group of friends to his private booth in the nightclub in Barcelona, sexually harassed the victim and took her to a doorway. It is also alleged by the newspaper that the victim did not know where the door led and Alves insisted despite her resistance.
When she noticed they were in a bathroom, the victim tried to leave but Alves allegedly locked the door and sexually assaulted her before leaving alone fifteen minutes later.
After a long investigation, officials concluded that camera footage from the nightclub conformed to the victim’s telling of events while heavily contradicting Alves’ and on January 20th, detained him in Barcelona. Three days later, Alves was transferred to a preventative prison, seemingly for his own protection as a public figure.
While the trial is yet to happen and could take up to two years, the history of the application of sexual assault legislation in Spain indicates that this case will be one to watch out for. The world is divided between whether to see the Spanish court as a benchmark to follow or as an example of inefficiency and negligent adjudication for the sake of taking action.