We have known the sentence that condemns Luis Rubiales as the author of a crime of sexual assault for kissing on the lips the Atlético de Madrid youth player, Jenni Hermoso, and acquits all the defendants of the crime of coercion that was attributed to them. Four key aspects of this sentence can be highlighted.

First core topic: the sexual connotation of the kiss.

The first core topic, and the most legally interesting, consists in answering the following question: does a kiss on the lips infringe on the sexual freedom of another person?

As I wrote in another article when this case arose, the answer that jurisprudence has been giving to this problem has not always been the same, and it depends on each specific case. Fundamentally, it is necessary to differentiate whether we are dealing with a kiss of an erotic nature or a mere manifestation of affection.

For example, Supreme Court Ruling 165/2022 convicted a defendant who had attempted to kiss a minor on the mouth while drawing her against his body, taking advantage of a meeting on a staircase, because in that particular case the erotic content of the action was evident. However, the Supreme Court has also pointed out that "a kiss on the lips is in some contexts a normalized form of externalizing affection without erotic overtones". For that reason, judgment 490/2015 of the Supreme Court upheld the acquittal of the defendant who had kissed his granddaughter on the lips, considering that this grandfather-granddaughter relationship, together with the development of the facts, suggested more a manifestation of affection than an erotic act.

The sentence that condemns Rubiales addresses this issue first, and concludes that "this action of giving a kiss on the mouth to the woman has a clear sexual connotation, and is not the normal way to greet people with whom one does not have a relationship of affection". I believe that this argumentation of the sentence is unsatisfactory, because it refers to the connotation that generally entails a kiss on the lips, without stopping to analyze, with sufficient depth, the specific sexual connotation of the specific kiss that is being judged. 

In my opinion, it was not a question of analyzing the usual connotation, in general, of kisses on the mouth, but the particular connotation of this particular kiss. The context in which the events occurred - euphoria over the celebration of the historic World Cup won by the Spanish national team - raises doubts about the connotation - erotic or simply affective - of that action, and its consideration as an erotic act would require a better motivation. I do not have space here to expand on this issue, but the defense will certainly delve into this matter in its resource .

Second core topic: consent.

The sentence also analyzes the absence of consent, as an essential requirement of this crime. To this end, it explains that "this judge attributes full credibility to Jenni Hermoso", as the three elements that allow considering the statement of the complainant as a test of position are present: objective credibility (that her statements are not implausible, and are compatible with the rest of the test), subjective credibility (absence of reasons of resentment, revenge, or similar that allow doubting her sincerity) and persistence in the incrimination (absence of contradictions in her statements).

The discussion, in fact, rather than on the absence or not of consent, focuses on its possible externalization, since the defense maintains that the defendant asked for permission to kiss her and she gave it, which the striker of the national team denies.

On this issue, the ruling discredits the lip-reading expert report that, analyzing a TikTok video, concludes that Rubiales asked "Can I give you a kiss? The problem is that the response of the veteran striker, who had her back turned in the video, is unknown.

Third core topic: coercion.

As for the crime of coercion, for which both Rubiales and the other defendants were accused, the judge did not hesitate to give a little slap on the wrist to the Prosecutor's Office and other accusers.

The sentence recalls that the crime of coercion requires the existence of violence or intimidation to prevent another from doing what the law does not prohibit, or to do what he does not want to do. However, in the account of facts contained in the indictments, neither the prosecution nor the private or popular accusations described any act of violence or intimidation against Jenni Hermoso, and the right of defense prevents convicting for facts that have not been included in the indictments. In addition, the sentence analyzes the statements of the various witnesses, and notes that none described acts of violence or intimidation.

Fourth core topic: grief.

article 178.4 of the Penal Code, introduced by the reform known as the "Yes is Yes" Law, contemplates the possibility of imposing only a fine for the crime of sexual assault, in view of the minor nature of the act and the personal circumstances of the perpetrator. The judge considers that the prosecuted facts can be considered as of lesser intensity, being a stolen kiss in the euphoria of the celebration of the degree scroll the World Cup.

The sentence rightly points out that if this fact were not framed among those of lesser intensity referred to in article 178.4, this article would be meaningless and could never be applied, because it is difficult to imagine a sexual assault of lesser intensity than this one. Thus, article 178.4 is applied and a fine of 18 months is imposed (the minimum length contemplated in this article, which establishes a range of between 18 and 24 months) at a rate of 20 euros per day, which means a total of 10,800 euros.