At the same time, referring to tonic immobility does not, by itself, prove all the facts alleged in an accusation.
This distinction is important both for understanding someone who reports being unable to react and for examining the evidence rigorously. Criminal proceedings must investigate what happened to that particular person at that particular moment, without imposing a reaction that all victims would be expected to have displayed.
What is tonic immobility?
Tonic immobility is described as an involuntary motor inhibition response to a threat perceived as extreme. It may be accompanied by difficulty speaking or asking for help. The everyday expression “I froze” may refer to this experience, although it does not, by itself, amount to a clinical assessment.
A study by Möller, Söndergaard and Helström published in 2017 assessed 298 women who received care following a sexual assault. Seventy per cent reported significant tonic immobility. This result relates to that clinical sample and its assessment method: it cannot be used to attribute the same percentage to all sexual assaults or to determine what happened in a specific proceeding. Original study on PubMed.
The research also found an association with subsequent symptoms of post-traumatic stress and depression. A statistical association does not mean that those symptoms necessarily prove a single cause.
Why lack of resistance does not amount to consent
The definition contained in Article 178.1 of the Spanish Criminal Code requires a free expression of will, assessed according to the circumstances. It does not establish that a person must scream, escape or physically resist in order to preserve their sexual freedom. Spanish Criminal Code, Article 178.
Fear, freezing or the perception that resisting would increase the danger may explain apparently passive behaviour. Therefore, a question such as “why didn't they leave?” should, where relevant, be asked in order to understand the circumstances and the person's actual ability to act. It cannot already contain the conclusion that someone who did not escape accepted what happened.
The opposite inference must also be avoided. Passivity is a fact that requires context; by itself, it neither identifies a clinical response nor resolves the entire question of consent.
How freezing is investigated in a specific case
It is useful to reconstruct a timeline: what happened before the contact, when the freezing response appeared, what the person experienced and how the situation ended. General explanations provide less information than a description that allows the episode to be compared with other evidence.
Initial accounts, messages sent, observations by third parties and medical documentation may be relevant. It is necessary to establish precisely what each element proves. A person who observed nervousness after the events may describe it; that does not mean they directly know its cause or how the entire encounter unfolded.
An expert assessment should explain the methods used, the information reviewed and the limitations of its conclusions. Where substance use, pre-existing disorders or other relevant circumstances exist, their possible impact must be considered. Such a review should focus on matters related to the case and avoid turning a person's private life into an indiscriminate investigation.
What can a psychological report contribute?
A report can help describe symptoms, psychological functioning and whether certain reactions are compatible with what has been reported. Its evidential strength depends on the quality of the assessment and the connection between the data examined and the conclusions reached.
Compatibility has a limited scope. The fact that a clinical presentation is compatible with a traumatic experience does not automatically identify its perpetrator or confirm every detail of a complaint. Conversely, the absence of a particular clinical presentation does not, by itself, exclude the possibility that an assault occurred.
It is useful to ask whether the report distinguishes between the account received and the findings of the assessment, whether documentation has been cross-checked and whether alternative explanations have been considered where appropriate. The decision regarding the facts and responsibility belongs to the court, which must assess the evidence as a whole.
How the defence can examine this argument
The defence can acknowledge that tonic immobility exists while disputing whether it has been established in the specific case.
The examination may address the chronology, the basis of the report, the sources of information and the relationship between the reaction described and the conduct attributed to the accused. The defence may also request clarification from experts or an alternative assessment where there is a specific technical issue to resolve.
These steps do not impose an obligation on the complainant to have physically defended themselves. Their purpose is to establish the scope of the evidence presented. The presumption of innocence requires sufficient evidence for the prosecution and a rational assessment of that evidence; it does not disappear because the accusation includes a clinical explanation. Spanish Constitution, Article 24.2.
Subsequent behaviour requires context
Remaining in contact, delaying a complaint or appearing calm does not determine what happened. Nor is every subsequent reaction necessarily explained by trauma.
An affectionate message requires consideration of when it was sent and what conversation preceded it. Selecting a single sentence as conclusive evidence may conceal relevant circumstances. The same care should be applied to messages expressing distress or to ambiguous communications.
Frequently asked questions about tonic immobility
Is being immobile the same as being unconscious?
No. They are not equivalent concepts. The freezing response described as tonic immobility should not, without assessment, be confused with sleep, sedation or loss of consciousness.
Does a diagnosis require the court to convict?
No. The clinical assessment must be considered together with the remaining evidence and the legal elements of the offence. By itself, it does not determine authorship or guilt.
Does the absence of a diagnosis prove that there was consent?
No. The absence of consent can be investigated without a diagnosis of tonic immobility. What matters is the evidence concerning the act and the relevant circumstances.
Review of expert evidence
Request a legal review of reports concerning tonic immobility. Understanding their scope makes it possible to prepare relevant questions and determine which aspects require expert clarification.
If you are involved in sexual assault proceedings in Spain where psychological or expert reports concerning tonic immobility have been submitted, contact Brandi Abogados. Our criminal defence lawyers can confidentially review the proceedings and expert evidence in order to assess its scope within the case and prepare the appropriate legal strategy.
