Last year the Justice understood that in the middle of a sexual relationship that had begun in a consensual way, a man forced a woman to carry out a practice with which he did not agree, which is why he was sentenced to two years and nine months. from prison Despite the grievances presented by the lawyers Ignacio Arispe and Diego de Pazos, the 4th Court of Appeals for Criminal Matters confirmed the sentence, relying as evidence on a psychological expertise on the victim, her story and the story of her friends.
According to the sentence, the young people had met through the Tinder application a year ago and had had between eight or ten previous encounters in which they had had sexual relations. But on May 24, 2020, the victim invited him to his house and when they were having sex, the now convicted man performed sexual acts despite the woman’s refusal. “The victim told him no and rehearsed a resistance that was overcome” by the man, says the ruling. There he took her from her arms and pulled her hair, while she held her head against her mattress, the complainant said.
Later he asked her to make him a coffee and there she asked him why he had done what he did despite her refusal. He “questioned her about a book that the victim was reading” and left the place.
Regarding what happened -and the triumph in the first instance of the Prosecutor’s Office-, the Court of Appeals indicated that due to the background of the couple -this type of practice had been carried out previously with the consent of both- could fall into a “word against word”, but it’s not like that. This is the product of other evidence that gives indications of what really happened, beyond the fact that the victim did not present any physical injury.
In listing these indicia, the court cites two. The first is the expanded report by Dr. Imbert of the ITF, which stated that “The reported aggression may have existed and leave no visible traces the next day.” Especially in cases in which certain actions had been adopted such as placing ice and creams suitable for reducing inflammation in the area, which the victim stated that he did. In addition, a report was “with an order that has been maintained over time, it is chronic, it is a vivid story, that only the victims who have suffered it can tell it that way”. The victim’s story was always the same and was in line with that of her friends.
The lack of injuries is not a relevant input for the court. “It does not allow inferring that the victim did not resist and even further, that he consented to the aggression“, they maintained. Nor, the messages of “high erotic content that they exchanged before the fact”.
They argued that “it has not lowered the evidentiary standard nor does it replace sound criticism due to the ‘gender perspective’. In the case, the evidence was evaluated in accordance with the legally established regime, without prejudice to the legal consecration of said principle.”
According to the court, “the Prosecutor’s Office and defense must support and demonstrate their theory of the case, which is nothing more than their point of view on it (…) In the case, the Prosecutor’s Office was able to demonstrate its point of view, with the certainty required by law to the issuance of a sentence of conviction; that is, full proof that determines the rejection of the defense’s grievances”.
The lawyers Arispe and Pazos had pointed out that the initial ruling, issued by the 7th Court of Ciudad de la Costa, presented “a wide variety of incorrect and erroneous assessments that deviate from the elements contained in” the legal system “in terms of the assessment of the test, which has not been carried out through healthy criticism but taking into account gender perspectives”. They stated that “the only thing different” that happened the day the crime was committed “was the political discussion that existed and the almost immediate lynching on social media of the accused.”
