Does the kiss on the mouth of the president of the Royal Spanish Football Federation (RFEF) Luis Rubiales to Jenni Hermoso during the celebration of the degree scroll obtained by the Spanish national team in the Women's World Cup constitute a crime? And, if so, is the Spanish jurisdiction competent to investigate it, and if so, to judge it, despite the fact that it occurred in Australia?

Beyond any ethical and moral consideration of Rubiales' actions -both during the World Cup final and during the rest of his controversial tenure as head of the RFEF-, it is necessary to answer these two questions from a strictly legal point of view.

The first thing I must clarify is that Spanish criminal law has been punishing since before democracy all acts of a sexual nature performed on another person without their consent. It is a hoax that it is the recent and misnamed "Law of Solo Sí es Sí" that puts consent at the center of these crimes.

For example, the 1995 Penal Code already punished in its article 181 as a perpetrator of sexual abuse anyone who "without consent, performs acts that infringe on the sexual freedom of another person". If the act was also committed by means of violence or intimidation, it was considered sexual assault and was punished with a higher penalty.

The Montero Law eliminated that distinction to call all aggression and punish with the same penalty the most serious --violence and/or intimidation-- and the least serious. Thus, today the new article 178 punishes anyone who "performs any act that infringes on the sexual freedom of another person without their consent".

The question is: does a kiss on the lips infringe on another person's sexual freedom?

If we look at the case law, we will see that the answer is not the same for all cases. It will depend on consent but, above all, on 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 because, in that particular case, the erotic content of the action was evident.

That sentence stated that "the fact that the accused, a 62-year-old man, sought to kiss a 12-year-old girl on the mouth, taking advantage of the intimacy of a meeting in the staircase, evidenced the erotic content of an action, supported by the fact of attracting her by the hips against his body".

However, the Supreme Court adds that "a kiss on the lips is in some contexts a normalized form of externalizing affection without erotic overtones".

For that reason, for example, in judgment 490/2015 the Supreme Court acquitted a defendant who kissed his granddaughter on the mouth, since that grandfather-granddaughter relationship, together with the development of the facts, made one think more of a manifestation of affection than an erotic act.

Therefore, when faced with a kiss on the mouth, the specific case must be analyzed and three circumstances must be taken into account: whether this particular kiss was of a sexual nature or, on the contrary, a mere manifestation of affection; whether or not it was consented to by both parties; and whether the perpetrator knew and consented to both the sexual nature of his action and the lack of consent of the other party.

The analysis of these three circumstances in the specific case will determine the criminal nature or not of Luis Rubiales' kiss to Jenni Hermoso. The abundant videographic test that exists -of the events themselves, but also of the previous and subsequent ones- will be an invaluable test to clarify it.

A second question remains to be answered. If the events occurred at Stadium Australia in Sydney, does the Spanish justice system have jurisdiction to investigate and, if necessary, judge them?

The article 23.2 of the Organic Law of the Judiciary allows Spanish jurisdiction to hear crimes committed abroad when the perpetrator is Spanish and, in addition, three conditions are met: requirements: the act must be punishable in the place of execution; the victim or the Prosecutor's Office must file a complaint with the Spanish courts (a complaint is not sufficient, a lawsuit is required); and the perpetrator must not have been previously acquitted or convicted of these acts in another country or, if convicted, must not have served the sentence.

In this case, the first requirement -Luis Rubiales is Spanish- is met, as well as the first one -sexual assault is criminalized in Australia-, and the third one -Australian justice has not tried the facts-.

It would therefore be necessary for either the player or the Prosecutor's Office to file a complaint with the Audiencia Nacional, the competent body to prosecute crimes committed outside Spain.

The usual internship of the Public Prosecutor's Office is to file a complaint only in the case of victims who are minors or have a disability, which makes it difficult to do so in this case, unless the media nature of the case -it would not be the first time- leads the Public Prosecutor's Office to change its criteria.

Therefore, it seems almost certain that the prosecution of these events will be left in the hands of the decision taken by the player herself.