It is also possible that, after trial, the evidence may not be sufficient to overcome reasonable doubt, in which case an acquittal may be appropriate.
To understand how a sexual assault without witnesses is proven, two questions must be distinguished: what happened and what the evidence presented allows the court to establish. The seriousness of an accusation requires a rigorous investigation and respect for the presumption of innocence throughout the proceedings.
What the prosecution must prove
Article 178 of the Spanish Criminal Code places the absence of consent at the centre of the offence. The prosecution must prove the act of a sexual nature, the involvement of the accused person and the other elements of the offence, including the absence of consent and the corresponding subjective element. The accused retains the right to remain silent and does not have to prove their innocence. Spanish Constitution, Article 24.2.
The reform known as the “Only Yes Means Yes” law does not turn a complaint into a presumption of guilt. The court must explain why it considers the facts to have been proven. If reasonable doubts remain regarding an element necessary for conviction, they must be resolved in favour of the accused.
Consent can be expressed without words
The law does not require a contract or a verbal formula. Consent may be expressed through conduct which, when assessed in context, clearly expresses a person's free will. It may be limited to particular acts or conditions and may be withdrawn during the relationship. Spanish Criminal Code, Article 178.1.
Agreeing to a date, entering a home or having previously had sexual relations does not authorise any subsequent contact. Nor does marriage create an obligation to have sexual relations. These circumstances may help reconstruct the context, but they do not replace the analysis of the specific act being reported.
Consider two people who exchange sexually explicit messages and arrange to meet at a hotel. Those conversations may demonstrate an initial intention. To determine whether a subsequent act was consensual, it will also be necessary to examine what happened when they met and during the sexual encounter.
How much weight does the complainant's statement carry?
When only the people involved witnessed what happened, the court must explain its assessment particularly carefully. It is not enough to state that one version appears convincing: its content, the circumstances in which it was given and its relationship with the other available information must be examined.
Case law uses criteria such as plausibility, consistency in essential aspects and the possible existence of motives that may affect credibility. These are guidelines for reasoning, not a checklist that automatically results in either conviction or acquittal. A minor difference between statements does not necessarily amount to a decisive contradiction. Circular 3/2009 of the Public Prosecutor's Office, section concerning the assessment of testimony.
Spanish Supreme Court Judgment STS 625/2024, of 19 June, illustrates how a statement may be assessed together with defence evidence. Its outcome depended on the facts and the reasoning of the courts involved; it does not establish that every complaint must be believed without scrutiny. Text of the judgment.
What other evidence may be relevant?
Complete conversations, lawfully obtained recordings, access records, movements and medical reports can help verify an account. Each item of evidence answers different questions. Biological evidence may establish that contact occurred without, by itself, determining whether that contact was consensual. A camera showing someone entering a building may establish a time, even though it does not show what happened inside.
It is also important to distinguish an eyewitness from someone who only subsequently received an account of what happened. The latter can explain what they were told or the condition they observed, but this does not make them a direct witness to an encounter they did not see.
The usefulness of evidence depends on its actual scope. Original messages and their context should be preserved, existing recordings should be identified as early as possible and their incorporation into the proceedings should be requested through the appropriate channels. A selection of screenshots may omit information necessary to interpret a conversation.
The defence and mistake regarding consent
A defence may dispute whether the events occurred as described, the sufficiency of the evidence or their legal classification. It may also raise a mistake regarding consent where there is evidence capable of supporting that argument.
This issue requires identifying what was perceived and why it was interpreted in a particular way. Simply arguing that the other person did not say no is insufficient as a general explanation. Circular 1/2023 of the Public Prosecutor's Office requires consideration of objectively reasonable indications of consent and notes that these offences may involve dolus eventualis. This is a criterion governing the actions of the Public Prosecutor's Office and must be distinguished from a court judgment. Circular 1/2023, section 5.
Dolus eventualis involves acting while accepting the possibility that the contact may not be consensual. It must be proven; an ambiguous situation does not automatically result in a conviction. A doubt experienced by the accused when acting and a doubt held by the court after assessing the evidence are different issues.
Frequently asked questions about evidence in sexual assault cases
Can there be a conviction without injuries?
Yes. Injuries are not a general requirement of the offence. Their presence or absence must be assessed according to the alleged conduct and the other evidence.
Does an acquittal mean that the complaint was false?
No. An acquittal due to insufficient evidence means that guilt was not proven to the required standard. It does not, by itself, demonstrate that the complaint was deliberately false.
Is denying the allegations enough?
The accused may deny the allegations and remain silent. The decision regarding defence strategy should be made after reviewing the proceedings and analysing the available evidence, without altering or destroying information.
Legal advice following a sexual assault complaint
If you are involved in proceedings, seek a legal assessment of the case before deciding how to respond. Reviewing the complaint, statements and evidence makes it possible to identify what is actually in dispute and what investigative measures may help clarify it.
If you are involved in sexual assault proceedings in Spain and require specialised legal advice, contact Brandi Abogados. Our criminal defence lawyers can assess your case confidentially and determine the appropriate defence strategy from the earliest stages of the proceedings.
