The Supreme Court (TSJ) has unanimously declared that cases of ‘stealthing’ – having sexual relations without a condom without having consented to do so without it – can be considered crimes against sexual freedom, as reported by the court through a press release.
In deliberating on the penalty to be imposed, five magistrates – who have announced a dissenting vote – understand that the penalty for penetration without consent must be set. The full sentence will be published in the coming days.
It was last January when the high court began to study this matter following a case of ‘stealthing’ from the Provincial Court of Seville where the accused was sentenced to 4 years in prison for a crime of sexual abuse and 6 months of prison for another of injuries.
Initially, there were five magistrates from the Second Section who prepared to address the deliberation and ruling of the appeal presented by the man against this sentence, which was confirmed by the Superior Court of Justice (TSJ) of Andalusia. However, they finally decided to elevate it to the Plenary Session when they understood that he raised a novel issue that the Supreme Court had not addressed until now.
The specific case, whose presentation fell to Judge Antonio del Moral, dates back to July 2017 when the convicted man and the victim were preparing to have consensual sexual relations in a car parked in an open field, as they had done on other occasions “without it being possible to affirm that another type of emotional relationship existed between them,” according to the TSJ ruling.
Before the sexual encounter, he informed her that he was being treated for a sexually transmitted disease, “although without telling her the specific diagnosis.” She reacted by consenting to sexual relations but with protection, “because they had always maintained them that way and even more so because of the infection”, for which purpose she gave him the condom herself.
However, he never put it on, pretending that he had. At one point, she sensed that she was not wearing a condom and tried to stop the sexual relationship. The accused, after “a short period of time”, interrupted intercourse, “withdrew, got dressed and left the place, but not before throwing the unused condom” on the ground after getting out of the car. As a result, the woman contracted a sexually transmitted disease.
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