Differences in rape trials in Brazil and Spain – 02/22/2024 – Sport

Daniel Alves, a former Brazilian national team player, was sentenced to 4 years and 6 months in prison for rape and a further 5 years on supervised release. The verdict was handed down by a collegial jury, made up of three magistrates, in Barcelona, ​​this Thursday (22). This decision, which granted a considerably lower sentence than that required by the Spanish Public Prosecutor’s Office and the victim’s defense, shows the nuances of the Spanish legal system.

Here in Brazil, cases of this nature are traditionally judged by just one judge. The scenario also highlights that, in Brazilian legislation, only intentional crimes against life are judged by a jury trial.

Homicide, abortion, infanticide, crimes in support of suicide and genocide are those that most often go to trial. “Rape is not a crime that traditionally goes to the jury, even if it is a rape followed by death”, explains Graziela Jurça Fanti, women’s lawyer and master’s student in criminology at USP (University of Sã Paulo).

Daniel Alves’ bench was made up of three judges, a model used to judge serious criminal cases. Although less common than the traditional one, this is a configuration that seeks a more detailed analysis of a case.

“Often, this meeting of several judges does not have a great impact or does not differ in relation to when a single judge judges. When there is a collegiate situation there is a better view of the scenario. Whereas in comparative law, when there is more than one head analyzing , there is a better result, because there is a debate between these people”, highlights Roselle Soglio, criminal lawyer, specialist in criminal expertise, professor of criminal law and criminal procedural law at Legale.

The differences between Brazilian and Spanish legislation may vary in several aspects, including the legal definition of the crime, judicial procedures, penalties and mitigating factors considered.

In Brazil, rape is classified as any act of sexual violence against a person, while in Spain the crime can be defined in a similar way, but the nuances can vary according to specific legislation and jurisprudence.

“In Brazilian territory, rape crimes are traditionally judged by a single judge, a single judge and not by a collegiate, because we have a different way of structuring the courts than the Spanish courts, as is the case with Daniel Alves”, points out Graziela Jurça Fanti. This is a difference in judicial procedures, which concerns the way the crime is investigated and judged.

But it is worth mentioning that it is possible that some cases may go to a higher court for a collegial decision here in Brazil. “This is called an appeal, which is you appealing to a higher court trying to overturn the single judge’s decision regarding the amount of penalty, the seriousness of the offense or whether there was in fact a crime. All matters are questionable and can be taken to court superiors in which the decision is collegiate”, he adds.

In cases of sexual crimes, Brazilian legislation provides specific penalties for each type. “Unlike Spain, where you have a single article that encompasses all sexual crimes, Brazil separates the crimes. There is rape, sexual violence through fraud, sexual harassment, sexual harassment, among others. For each of them you have a penalty and , sometimes, there is a crime associated with another”, explains Roselle Soglio.

The laws in both countries provide for specific mitigating factors that affect the application of the sentence. In the case of Daniel Alves, drunkenness was alleged as a way of trying to reduce prison time – which ended up not being accepted by the courts. “Our legislation does not provide for this. In Brazil, the sentence would be harsher, with the possibility of serving more time in prison”, adds Soglio.

In addition to the allegation of drunkenness, the ex-player’s defense used another way to reduce the sentence: a deposit of €150,000 (R$803,000) in court as a mitigating factor to repair the damage. He was sentenced to 9 years in prison, but will serve 4 and a half years in prison and the remainder on supervised release. If he commits any infraction, he will go back to prison.

Soglio also explains that, in theory, Daniel Alves, being a Brazilian citizen, could request his extradition to serve his sentence in Brazil, considering existing international agreements. However, this request is unlikely to be granted as the crime was committed in Spain and would be more in line with Spanish law. Still, nothing prevents him from making such a request.

His defense claimed that they will appeal for Daniel Alves to be acquitted.

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