Spanish court upholds ruling that 'wolf-pack' non-consensual sex was not rape

A participant holds banner reading,''Not one less'' in Plaza del Castillo square during a protest last month about male violence against women, in Pamplona, northern Spain. Photo / AP

In July 2016, a group of men in Pamplona, Spain, offered to walk an 18-year-old woman to her car. But instead of doing that, they led her to the lobby of a building, where they took turns filming themselves sexually assaulting her.

Police arrested five men the next day, but in April, a Spanish court fell short of determining that they had raped her. The Guardian reported that the legal distinction between sexual abuse and rape in Spain comes down to whether the attack was violent or included intimidation.

At the time, the court claimed that meant that the group was guilty of "continuous sexual abuse" rather than rape. The men were sentenced to nine years each in prison.

Yesterday, another Spanish court upheld that decision, which the woman's lawyers have said does not go far enough. Now the case, which prompted protests and the formation of a committee to overhaul Spain's penal code on sexual violence, heads to the country's Supreme Court.

In Spain, the perpetrators came to be known as the "wolf pack," because they were members of a WhatsApp group by that name. The judge did not allow the jury to consider the WhatsApp chats among the men, who texted 'us five are f***ing one girl' and 'there is video' shortly after the attack."

The video footage shows the woman remaining still, her eyes shut. The defendants' legal team argued that was proof that she had consented; the woman's lawyers said she was too scared to move.

"The defendants want us to believe that on that night they met an 18-year-old girl, living a normal life, who, after 20 minutes of conversation with people she didn't know, agreed to group sex involving every type of penetration, sometimes simultaneously, without using a condom," the Guardian quoted prosecutor Elena Sarasate as saying.

The woman's phone was also stolen by a member of the group. Sarasate argued that if they had consensual sex: "The obvious thing would be to exchange phone numbers, not steal her phone".

Today, the court did uphold the defendants' nine-year sentences and said in the ruling that "the court affirms that the sexual relations under consideration were carried out by the defendants without the free consent of the victim."

The case has drawn attention to Spain's laws on sexual violence, which activists say are antiquated and patriarchal.

Last month, in a separate case, a man and his nephew were found guilty of sexual abuse and not sexual assault or rape because the court couldn't determine that they had used violence or intimidation while allegedly forcing a woman they met in a club to have sex and take part in another sexual act.

The court determined that the men had indeed taken "advantage of her vulnerable nature, which, added to her alcohol and antidepressants, may have weakened her ability to defend herself, thus making the use of violent or intimidatory acts unnecessary," the BBC reported.