Why Was Luis Rubiales Convicted? Legal Analysis

Rubiales’ kiss to Jennifer Hermoso, which went around the world and filled the sports newspapers’ front pages has generated intense debate about the limits of consent and the legal consequences of acts considered inappropriate.

Recently we learned of his conviction for sexual assault, resulting from the non-consensual kiss to footballer Jennifer Hermoso, establishes a relevant precedent in the interpretation of the Spanish Criminal Code.

What was Rubiales accused of?

Luis Rubiales was prosecuted for sexual assault under article 178 of the Criminal Code, for having kissed Jennifer Hermoso on the lips without her consent. Additionally, he was accused of coercion (art. 172.1 CP) for allegedly pressuring the player to publicly defend his version of the events.

Along with him, other members of the Royal Spanish Football Federation (RFEF) were investigated:

• Jorge Vilda
• Albert Luque
• Rubén Rivera

The three faced charges of coercion, for having attempted to influence Hermoso and her circle in order to minimize the media impact of the case. However, the lack of sufficient evidence led to their acquittal on this charge.

Why have they convicted Lu

Why is a kiss without consent considered a crime?

A kiss on the lips without consent violates the sexual freedom of the victim. It is not just about the physical action, but about the fact of imposing contact with sexual connotation without authorization.

The Supreme Court has maintained that any contact with sexual significance, even if brief, can constitute sexual assault, even if there is no violence.

In the case of Luis Rubiales, the sentence determines that the kiss had a clear sexual connotation, was unexpected and was performed without prior consent, which led to the conviction.

Non-consensual kissing in jurisprudence and the Criminal Code

The evolution of jurisprudence has redefined the way non-consensual kisses are treated criminally in Spain.

• Before 2015: Some courts classified these acts as unjust humiliation, sanctioned with light fines.
• Since 2018: The Supreme Court Judgment of July 23 and December 3, 2018 consolidated that any touching with sexual significance without consent should be considered sexual assault.

This jurisprudential evolution has generated a change in the interpretation of the Criminal Code, eliminating the possibility of classifying these acts as minor infractions and establishing that consent

Critical analysis of the Luis Rubiales sentence

For there to be a conviction for sexual assault (art. 178 CP), two essential elements must be met:

• The objective element: That the action has attacked sexual freedom without consent.
• The subjective element: That the perpetrator had knowledge and will of the conduct.

In this case, the sentence develops the objective element, affirming that the kiss had sexual connotation and that it was without consent.

However, it does not analyze the subjective element (intent of the perpetrator). The only indirect reference to Rubiales’ mental state is that the kiss was given «within the euphoria of celebrating winning the World Cup», which could open a path to appeal the conviction.

Is it mandatory for the sentence to expressly mention intent?

Jurisprudence indicates that intent can be inferred from context, without needing to be explicitly mentioned in the proven facts. However, in this case, neither in the facts nor in the legal grounds is its existence clearly mentioned.

Is it important that the subjective element be analyzed?

The analysis of the subjective element in the crime of sexual assault is essential, as it allows determining the real intention of the perpetrator when committing the conduct. Although jurisprudence has eliminated the ex