Several feminist collectives have come together in Porto, Coimbra and Lisbon to protest against the current conservative law and magistrate that insists on excusing chauvinistic violence, turning victims into culprits. A few hundred people gathered in Lisbon carrying messages such as “An end to sexist violence”, “Enough impunity” and “Resignation of misogynist judges”.
This time, the subject matter is the verdict currently on appeal at the Court of Appeals (Tribunal da Relação) in Porto. The verdict relativized the sexual assault perpetrated by two men against a woman in the bathroom of a bar. The woman claims to have repeatedly lost consciousness throughout the assault.
a) To condemn each of the defendants C… and B… for the practice (…) of a crime of sexual abuse of a person incapable of resistance, (…) through article 165º, numbers 1 and 2, of the Penal Code, sentenced to 4 years and 6 months in prison.
Sexual abuse of person incapable of resistance
1 – Whomsoever practices a relevant sexual act with an unconscious person or incapable, for some other reason, of presenting resistance, taking advantage of their state of incapacity, is punished with a prison sentence of six months to eight years.
2 – If the relevant sexual act consists in copulation, anal coitus, oral coitus or the vaginal or anal insertion of body parts or objects, the agent is punished with a prison sentence of two to ten years.
Somehow, both courts involved considered that the victim was in some way predisposed to suffer abuse. After all, she decided to go out at night, enjoy herself and drink alcohol. These ludicrous interpretations of legal evidence were made even after the following declarations were intercepted from the perpetrators’ phone calls: “(…) she was wasted (…)” and “(…) No. She had completely blacked out in the bathroom (…)”.
8.- the defendant B… knew of the unconscious state of the offended and refers to it in telephone calls intercepted via wiretaps on his cellphone, saying “(…) she was wasted (…)” and “(…) No. She had completely blacked out in the bathroom (…)”.
Despite this and the images recorded by the bar’s camera and the victim having stated that she was forced to have sexual intercourse, the courts nevertheless declared that it could not be proved conclusively that she had been completely incapable of resisting. As such, while the defendants were found guilty, there is scope in the law to hand out suspended sentences.
It was at the Attorney General’s request that the sentence handed out by Gaia’s legal Court was reviewed on appeal at the Court of Appeal in Porto. The defendants were found guilty of sexual assault – reality is acknowledged – but because the sentence was less than 5 years and the defendants don’t even have any criminal history, the prison sentence of 4 years and 6 months was suspended (articles 50 and following of the Penal Code). The victim, on the other hand, was judged for having had a few glasses too many and for having let herself be sexually abused in a bathroom while only intermittently conscious.
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