It happened more than 100 times a year, once every three days. A woman was in the emergency room of a hospital in the city of Barcelona. Alerted to the court on duty, a forensic doctor went to the center to recognize the victim and try to take biological samples of the crime. In 2017, a team of professionals from the Institute of Legal Medicine of Catalonia wanted to know what happened next with these cases, so they reviewed the judicial procedures of two years: of the 200 cases that had been opened in 2011 and 2012, only 22 were closed. with a sentence; and only 11, with a conviction. The study quantified for the first time in Spain a reality as little known as it is crucial in many current debates: the majority of rapes
This is also the case, and at the national level, when the process begins in police stations and barracks: eight out of every ten complaints do not reach trial, according to EL PAÍS’s calculation with data from the Ministry of the Interior and a tracking of sentences for rape developed by a Law researcher at the University of Salamanca, Isabel García Domínguez. And not because an agreement culminates the process, but because they are archived before without an indictment order. Only one in ten ends in a conviction. Prosecution rates and conviction of violations against complaints are far below those of other crimes against people and not much above those that affect property, which are the most numerous and, in proportion, the least punished.
“Deep down, what you have is that sexually assaulting comes for free,” says Complutense University sociologist Esmeralda Ballesteros, author of one of the few studies on procedural wear and tear—the difference among the cases that begin and those who reach the end of the process—of rape crimes published in Spain, within Sexual violence against women from the social sciences (Tecnos, 2021). “The majority, by far, of reported cases do not reach trial. It is a fact that has been found in most countries,” says Josep María Tamarit, professor of Criminal Law at the Open University of Catalonia and author of several studies on the phenomenon, although in sexual crimes in general, not just rape. , and against minors.
According to Ballesteros’ study, focused on the Provincial Court of Madrid during 2018, the processes lasted two years and two months on average. To calculate the rate of prosecutions and convictions, this newspaper has taken into account those two years of delay between the complaint and the sentence and has cross-referenced the data collected by the criminologist and professor of Criminal Law García Domínguez for the period 2015-2021 with the registered complaints. The calculation shows a 19.3% prosecution rate (2,851 sentences compared to 14,726 complaints). The conviction rate has been calculated with the convictions of adults and an estimate of those handed down with minors (based on the known percentage that they represent in the total number of complaints and trials). The total estimate shows 1,432 convictions (9.7% of the 14,726 complaints).
After the hidden number, that is, the rapes that are not even reported, the archiving of the investigations is the other major factor that obscures the knowledge of sexual violence. “I think that judges, prosecutors and police are not even aware that sexual violence remains,” says sociologist Ballesteros. The General Council of the Judiciary (CGPJ), the Ministry of the Interior and the Prosecutor’s Office do not have an analysis of the phenomenon. The Prosecutor of the Chamber against Violence against Women, Teresa Peramato, has declined to comment on these data because, according to her spokesperson, sexual violence is not among her powers, which are only gender violence: that exercised by partners or ex-partners. However, sexual violence from now on.
The hooded man and the perfect victim
None of these studies examine why so many rape cases are filed, which requires an investigation in itself. Beyond the scope of these studies, the judicial investigation often describes irreducible contradictory versions between the complainant and the accused for the archive, according to many orders published by the Judicial Documentation Center (Cendoj), but it does not always contrast them rigorously. The judge in Paula’s case, who denounced an ex-partner, filed the investigation in ten days by copying and pasting the record from another case: the name of the accused appeared in the record with asterisks, twice, and that of the complainant was that of another woman. Paula is a pseudonym because she and her parents “want to move on,” according to her lawyer.
The material and legal circumstances of the crime, and the shadow of prejudice that accompanies its victims, blur the archived cases and their causes. “If the victim has ingested alcohol, many times they are archived without even taking a statement,” says Sonia Ricondo, lawyer who practices private prosecution in sexual violence in Barcelona. A third of the victims in the forensic doctors’ study had drunk alcohol, which makes it difficult to remember the events and facilitates archiving; and the complaint is not always filed immediately, which hinders the collection of evidence. Legally, whether the procedures are initiated urgently by a call from a hospital, or whether they begin with a police report, the victims have to appear in the judicial process so that the prosecutor’s office can file charges.
Sometimes “the victim either cannot collaborate (due to alcohol poisoning, for example), or because it has been repeated, there are victims who prefer to forget,” explains Daniel Varona, professor of Criminal Law at the University of Girona and substitute magistrate in that Provincial Court. “It is, it is torture,” says Ana Gutiérrez Salegui, a forensic psychologist who participated in the La Manada trial in Pozoblanco (Córdoba).
The two main myths that should be banished in the investigation of these crimes, in Salegui’s opinion, are those of the “hooded rapist” and “the perfect victim.” The majority of the reported events are the work of acquaintances, many of them ex-partners or with some type of relationship with the victims, which also represents an almost unconscious barrier to the investigation. It is as if consent, at least until the law is reformed in 2022, was taken for granted from the outset.
“That is one of the automatisms, without a doubt. In the area of the couple, it is assumed that the woman has to always be available; and that there cannot be no consent,” explains lawyer Ricondo. A bias that is projected on convictions: “The partners or ex-partners of the victims are less likely to be convicted,” according to a quantitative analysis of almost 1,000 sentences led by Tamarit and published in 2023. Another of the studies directed by this professor, on sexual violence against minors in the province of Lleida in 2010 and 2011, found that 15% of the complaints were filed without the Prosecutor’s Office having requested any investigation. “I believe that the actions of the Prosecutor’s Office, at least in some places, are improving,” says Tamarit.
The perfect victim must act and respond without a shadow of a doubt about anything. Oppose the aggression, report it immediately, maintain consistency and, ideally, provide evidence. However, for Judge Varona, the difficulty of the evidence and the almost exclusive dependence on the victim’s story are not so much the causes, but rather the consequences of a poor investigation. “In my experience, many cases fall through investigation because in the end zeal and care have not been taken to gather sufficient evidence to support the victim’s story,” he explains. “Although there are judges and police who have already realized that not everything is a question of credibility and that for the statement to go from being credible to being corroborated, elements must be gathered [de prueba]”.
“The barriers that prevent these cases from being pursued judicially are excessive and there is room for improvement and to try to strengthen the evidence and protect the victims,” says Professor Tamarit. “These rates [de archivo] can be reduced and more cases can be prosecuted,” he adds.
For Varona, it is “a paradigmatic case”, although in the opposite sense. If the nightclub where the events occurred had not activated the protocol against sexual assaults immediately and the Mossos had not reacted with the diligence with which they did – they had cameras to record the scene, the condition of the victim, they sealed off the bathrooms to drink traces―, Varona points out, it is very likely that it would have ended up as another archived case. Another one.
Abandonment and collapse
The dimensions of the phenomenon place Spain among the neighboring countries with the lowest conviction rate for sexual crimes, but there are hardly any studies on the matter. “It caught our attention that in the literature of other countries there was a lot of talk about attrition [el desfase entre denuncias y sentencias]but we were not able to find data in Spain on this matter,” explains the deputy director of the Institute of Legal Medicine of Catalonia (IMLC), Alexandre Xifró, co-author of the 2017 study. “It is not that what is happening in Spain is an absolute international anomaly, but there are countries in which the prosecution of these cases is a little more successful. There is room for improvement,” according to Tamarit.
García Domínguez’s tracking of , which publishes “all sentences” for rape, according to CGPJ sources, also reveals a blind spot in official statistics that makes it difficult to see the problem. The annual report of the State Attorney General’s Office is especially significant, because forget at least two-thirds of the sentences when processing the data. On the other hand, police statistics summarize and presume as a “clarified fact” 87% of the complaints, for which it is enough that the name of the alleged perpetrator is stated, regardless of whether or not the investigation later leads to his prosecution and much more. less, to the trial.
The crossing of data from the Interior and the Prosecutor’s Office is the only one that can be done with official data and is what has been carried out by another Law researcher, Irene de Lamo, in , an article published in December in the Journal of Legal and Criminological Studies from the University of Cádiz. The main interest of this intersection, without being the most precise, is to compare “crimes of rape with crimes against people in general.”
The comparison “evidences” the distance: “crimes against people exceed the investigation phase in 58.25% of cases,” according to said article. Three times more than those of rape. Prosecution and conviction rates for rape are closer to those for property crimes (less than 5% of the hundreds of thousands of complaints per year). More than 90% of homicides, for example, “are clarified.” In that case, “clarify” really meant resolve.
For more than two decades, the fight against sexual violence has been conceptually and judicially separated from the fight against sexist violence. From now on, gender violence courts will take over the investigation of all violations. If about gender violence, the main lesson is that political commitment and investment in judicial means improves the effectiveness of criminal action (at the end of the nineties, more than 90% of the almost 100 murdered by their partners or ex-partners had previously reported, today half are murdered and only 25% of them have previously reported), the absorption of sexual violence by gender violence courts is bound to cause, according to all the voices consulted, a judicial collapse that will worsen. the quality of the investigations. And its results.
