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According to the proven facts, the victim met one of the accused at an ‘after party’, after consuming large quantities of alcohol and drugs. Subsequently, she was persuaded to accompany him to a house where other defendants were also present. Once in the room, while she was getting close to the person she had met at the after party, two of the others entered the room without her consent and began to touch her, leaving her semi-naked. The woman, in a state of shock, was taken to bed, where she was sexually assaulted in various ways by four men.
At the time, F, whom she had met in the after-hours club, remained passive in the room without preventing the acts or intervening. The victim, surrounded by strangers of superior physical build, in a confined and unfamiliar space, was unable to resist due to her physical and numerical inferiority. The judgement concludes that the young woman remained motionless during the assault, in a state of stupor, allowing herself to be assaulted for fear of further violence if she resisted. The Court also emphasises that the victim was in a highly vulnerable state due to the consumption of large quantities of alcohol and drugs, a circumstance that was taken advantage of by the accused to carry out the acts.
The sentence concludes that the aggression constitutes the crime of multiple rape, in which at least five men participated, four of whom have been identified and convicted. According to the narrative of the facts, the victim had only consented to sexual intercourse with one of the defendants (F).
One of the central aspects of the ruling is the concept of ‘environmental intimidation’, defined by the jurisprudence of the Supreme Court, an example of which is STS 10/2023. This intimidation is created by the presence of several aggressors in a confined space and their physical superiority, elements that undermine the victim's ability to resist or give consent. This intimidating environment constitutes an aggravating factor of the aggression, raising the seriousness of the crime by virtue of article 180.1.1 of the CP, which applies to aggressions carried out in joint action by two or more persons.
Co-authors: The sentence attributes to three of the accused (A, B and D) the role of material authors of the sexual assault, applying articles 178.1, 179 and 180.1.1 of the Penal Code. These individuals, in addition to acting without the victim's consent, used intimidation and violence, overriding her capacity to resist.
F as Accomplice (Art. 29 CP): As for the fourth defendant, initially convicted as an accomplice, the court raises his participation to the level of necessary cooperation. It considers that his presence, although passive, reinforced the climate of intimidation and facilitated the execution of the criminal acts.
In a previous analysis, F had been qualified as an accomplice for having adopted a passive stance in the room, without actively participating in the assault or intervening to prevent it. However, his inaction is interpreted as omissive complicity, as he did nothing to prevent the assault, facilitating the commission of the crime.
The judgment relies on precedents such as STS 953/2016 and STS 305/2013, which establish that intimidation in sexual assaults does not need to be irresistible in an absolute sense; it is sufficient for the victim to feel intimidated in order to be unable to resist in that specific context.
In the case of F, his passive role is assessed as omissive complicity, as he did nothing to prevent the crime and, although he did not act directly, his inaction collaborated with the other defendants by not intervening or attempting to stop the attacks.
Likewise, the judgement analyses the criteria of malice, collaborative attitude and tacit agreement, pointing out that F, by not acting to stop the aggression, showed conduct which, although it was not decisive for the execution of the crime, favoured the objective of the other aggressors. This interpretation of omissive complicity is framed within the doctrine of environmental intimidation.
The SCJ has determined differentiated sentences according to the level of participation of each defendant in the crime. The material perpetrators and necessary co-operators of the aggravated assaults receive sentences of nineteen years in prison. F, who was initially sentenced to eight years as an accomplice, now faces a sentence of sixteen years as a necessary co-operator. In addition, a twenty-four-year prohibition on approaching and communicating with the victim and a ten-year probation measure after serving the sentence are imposed.
Sentence 274/2024 of the High Court of Justice of Cantabria confirms the prison sentences for four men for a multiple sexual assault and increases the sentence of the fourth defendant (F) by considering him a necessary co-operator. Initially convicted as an accomplice, F is reclassified due to his passive presence, which the court considers contributed to the intimidating environment, facilitating the crime.
The judgment highlights the environmental intimidation created by the presence of several aggressors in a reduced space, nullifying the victim's ability to resist. This concept makes it possible to differentiate between material perpetrators and necessary co-operators, clarifying that, although F did not participate directly, his lack of intervention helped the crime to be consummated. With this ruling, the SCJ reinforces the legal protection of victims in contexts of group aggression and establishes a relevant precedent for future cases of sexual violence.
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