Sexual aggression. Judicial judgment of absolution and resource of cassation

Commentary on the Supreme Court of 1 January 2013

Abstract

The acts of undoubtedly intimidating content, they do not guard causal direct relation with the sexual acts object of the accusation. It is more, must split of that, both the intimidation and the concrete violence, it must be presided by the deceit of the author of a specific way. In the case, one does not accredit that the defendant was exercising a violence or concrete intimidation directed to obtaining the sexual accesses of which he is accused. The accusatory principle that applies in our criminal law, prevents the juzgador from dictating a resolution of sentence for a crime, by which the same one has not been requested, refiriéndose to the types of habitual mistreatment foreseen in the article 173.2 CP. Neither is done any reference to this alternative qualification in the resource of cassation, for what the same one not only would be opposite accusatory principle but also to the right of defense, even admitting a hypothetical homogeneity between both criminal types. It would lead us to valuing the judgment of guilt that is inescindible of the analysis of the personal tests, because the lack of accreditation of the subjective type that proclaims the Hearing must be integrated to the factum, then we would meet the obstacle consisting of the existence of a judgment absolutoria opposite to the decision of the Court entrusted to check her, in this case that of Cassation. A defendant who has turned out to be absolved in the judgment of instance when the sentence needs to begin to examine and modify the conviction on the facts, provided that it would demand the previous celebration of an appearance of the defendant to be heard, contingency that is not foreseen nowadays in the resource of cassation.