Read in Catalan

Has Spain's Law of Sexual Freedom 10/2022, popularly known as the 'Only yes means yes' law, benefited Dani Alves? Yes. One element of the law was that it abolished the lesser offence of sexual abuse in order to unify all actions in the crime of sexual assault. With the inclusion of the lesser offence, the minimum penalty for any sexual assault - which obviously includes rape - was reduced to a minimum of 4 years in prison, with the maximum sentence being 12 years. Subsequently, as judges began revising sex offenders' sentences downwards, the Spanish government responded to public outrage by increasing the minimum sentence to 6 years in prison in cases of sexual assaults with violence - the same level as previously. However, the consequences of this change, passed in April, however, could not be applied to the Alves case, since the sexual assault for which he has now been convicted took place on the morning of December 31st, 2022, and the penal framework most favorable to the accused is always applied.

This means that the footballer has avoided two years of imprisonment, because the Barcelona Audience judges stated that they applied the minimum possible sentence, 4 years and 6 months, in the sentence communicated this Thursday. However, the court admits that the range of the sentence that could be applied to Alves - taking into account the new law and the mitigating factor of reparation of damages - is from 4 to 8 years in prison.

On the other hand, the new Spanish law for sexual offences, which received its 'Only yes means yes' moniker because it defines the crime based on whether or not explicit consent was given, rather than on elements such as evidence that the victim "resisted", was also hailed as showing its worth in the case. "It is the end of impunity for sexual violence no matter how rich or powerful the aggressors might be," said the Catalan equality minister, Tania Verge.       

Sexual assault with violence

With regard to the assault on a 23-year-old woman in a bathroom at Barcelona's Sutton nightclub in the early hours of December 31st, 2022, the court maintains in the sentence that "it is considered proven that the accused grabbed the complainant roughly, threw her to the ground and prevented her from moving, and penetrated her vaginally, despite the fact that the complainant said no, that she wanted to leave." And it adds that this detail meets the criminal definition for "absence of consent, with the use of violence, and with carnal access". The credibility of the victim was reinforced, said the court, by other peripheral evidence, such as Alves's biological remains present in smears taken from the woman's body, as well as testimonies from Mossos police officers and the evidence of the after-effects the victim suffered.

Due to the weight of this evidence, the court concludes: "Taking into account the age of the victim, young and at the beginning of her working life, the consequences that have been caused to her, the violence exercised, with physical and psychological injuries, but, on the other hand, assessing the mitigating factor of reparation of damages that, without being classified highly, it is noted that the accused has shown himself to be in agreement with compensating the victim above the usual parameters in this type of crime, the penalty imposed on the accused is of 4 years and 6 months in prison."


One of the first reactions to Alves's sentence was that of the Catalan minister for equality and feminism, Tania Verge, who said on the X social media: "It is the end of impunity for sexual violence no matter how rich or powerful the aggressors might be. Because the protocols worked. Because consent has been put at the centre. Because despite attempts to discredit women, society has said enough and demands justice."

Irene Montero, former Spanish minister of equality, who promoted the 'only yes means yes' law, the legislation which put consent at the centre, although it also benefited Alves and other sex offenders - also posted on X: "The sentence against Dani Alves clearly establishes that he committed sexual assault because the victim did not consent." And he added: "It is the result of the feminist struggle for the right to sexual freedom and of putting consent at the centre. Impunity is over. Only yes means yes."

No injuries, no heroics

The three-judge court - consisting of justices María Isabel Delgado, Pablo Díez and Luis Belestá - states, with respect to the current law and Alves's sentence: "For the existence of sexual assault, it is not necessary that physical injuries occur, nor that there be a heroic opposition by the victim to having sexual relations. But in the present case we also find injuries to the victim [on the knee] that make it more than evident that there was violence to force her will, while the subsequent carnal access was not denied by the accused." In addition, the judges add: "Not only can consent be revoked at any time, but consent must also be given for each of the sexual varieties within a sexual encounter and it has not been shown that the complainant gave it."

No change with the law

In addition, the Barcelona court states that "in sexual assaults there is no presumption of the veracity of the victim's account nor does that person's statement prevail over the statements of the accused". The court, in fact, questions the statements of the former Spanish minister when it maintains, in the sentence, that "the recent legislative reforms in the matter of crimes against sexual freedom have not modified the criteria for the evaluation of the evidence giving prevalence to the statement of the victim over that of the accused, nor has it altered the need for the prosecutions to prove that the crime was committed.

Appeals to the Catalan High Court

With the verdict and sentence released, the footballer's lawyer, Inés Guardiola, stated that she is likely to lodge an appeal with the appeals chamber of the Catalan High Court (TSJC) seeking her client's acquittal or a sentence reduction to one year of prison, as she had demanded - a period that he has already served, as Alves has been in provisional prison since January 20th, 2023.

Once the appeal has been submitted, Alves's defence will also be able to ask for his provisional release again. And once the sentence is final and assuming that the sentence of 4 years and 6 months is upheld, Alves could start taking leave away from prison in the summer of 2024, as all inmates are able to do after serving one-third of their sentence.

It remains to be seen if prosecutor Elisabet Jiménez, who called for a nine-year term for Alves, and the victim's lawyer, Ester García, who demanded a 12-year prison sentence, will also appeal to the TSJC.