The sentence that has been handed down against five of the members of La Manad who raped a young woman during San Fermín, in 2016, has completely revolutionized the population. And it is that, until that moment, very little had been said about the legal difference between rape and sexual assault. It has been after learning that the perpetrators have been tried for sexual abuse and not rape that people have begun to wonder what the real difference between these terms was. There are many feminist associations, as well as different experts, who have complained about the result of the sentence, claiming that it was a violation and not a sexual assault, and all these complaints had a solid basis
What is a rape? And a sexual assault?
A rape , as such, is defined as “an offense that consists of having relations with a person without their consent, or with their consent obtained through violence or threat .” Rape requires penetration, whether vaginal, oral, or anal; This penetration does not have to be, necessarily, with male genitalia, but may also have occurred with objects, or with other parts of the body. Rape does not occur merely because the man in question wants to satisfy his sexual desire , but usually comes from a show of power on his part.
As for sexual assault , or sexual abuse, it does not have to be penetration and, in addition, it does not usually involve physical violence or a real threat. Sexual assault refers more to an attack ” against sexual freedom or indemnity “ , but without any type of violence or intimidation for this attack to take place.
What is the real difference between rape and sexual assault, then? On paper, we would be talking about the exercise or not of a certain violence. However, both are sex crimes typified and punishable by law, although not with the same penalty, and precisely this was the complaint that feminist associations and all those who believed that what the San Fermines girl experienced was not an assault. sexual, but rape. But there are different nuances around both definitions, which can be considered much more murky even.
The difference goes beyond
The case of the Pack serves us, right now, as a graphic example that the difference between sexual assault and rape is so insignificant that, in most cases, it could harm the victim . The judgment dictates that ” in the specific circumstances of the case, we do not appreciate that there is intimidation for the purposes of integrating the type of sexual assault. On the contrary, we believe that the defendants voluntarily established a situation of preeminence over the complainant, objectively appreciable , which generated a privileged position over her, taking advantage of the superiority thus generated, to sexually abuse the complainant who in this way did not freely give her consent, but was vitiated, coerced or pressured by such situation“In this way, they would take advantage of the subtle difference between coercing a person to consent without violence, and forcing them to have sex by force.
According to the magistrates, in this case there was no violence or intimidation. But the different associations, as well as an immense amount of experts, are complaining because they consider that the sentence is far from being fair . They affirm that there was violence, and that obviously there was intimidation, but this is not so noticeable on a physical level because the girl did not want to resist in order to escape the situation alive, for fear that retaliation if she refused to maintain relationships would end up taking her to the death. As happened to Diana Quer, for example, who died after being raped because she exerted more resistance than her rapist wanted to allow. Ultimately, it is measured whether or not there is violence in the victim’s reactions and not in the aggressors’ own behavior, something that does not make much sense.
The general complaint regarding this sentence is that the difference between rape and sexual abuse is too slight , and that it is extremely difficult to determine it truthfully in a trial. Covering up the injuries that a girl receives is unfair, especially since we do not know if she was threatened with death, or if other types of violence were used with her. That is why many people are demonstrating, asking that the sentence be reviewed , so that this does not happen in the cases that will come. And we also have to learn, as a society, what is rape and in what different settings and situations it takes place.