Abstract
Judgment No. 353/2026 of the Fourth Section of the Provincial Court (Audiencia Provincial) of Valencia is of particular interest from the perspective of the assessment of evidence in offences against sexual freedom, the delimitation between violence inherent to sexual assault and independently punishable bodily harm, and the recognition of an offence against moral integrity arising from humiliating acts committed after the assault.
The decision is fully consistent with the consolidated line of case law established following the reform introduced by Organic Law 10/2022, reinforcing the sufficiency of the victim's testimony as prosecution evidence where peripheral corroboration is present, even in the face of police statements pointing to the contrary. It also provides a paradigmatic example of the concurrence of offences of bodily harm and sexual assault, where additional wrongfulness susceptible to independent punishment is identified. Finally, the conviction for an offence against moral integrity raises questions of interest regarding the threshold of gravity required by Article 173.1 of the Criminal Code (Código Penal) and its possible autonomy in relation to the other concurrent offences.
I. Assessment of Evidence and Prevalence of the Complainants' Testimony over Police Statements
One of the most significant aspects of the decision lies in the Chamber's (Sala) express preference for the complainants' account over that offered by certain police officers who intervened following the events.
The judgment records that a local police officer stated having heard one of the complainants say that she had voluntarily entered the bathroom and that the accused had ceased his conduct when she expressed discomfort. However, the Court considers this version to be incompatible with the totality of the evidence adduced and opts to afford greater credibility to the complainants' incriminating account.
The legal significance of this point is notable. The Chamber implicitly recalls that a police officer's statement carries no special evidentiary privilege before a court. The principle of free assessment of evidence (libre valoración de la prueba) precludes attributing an enhanced presumption of truthfulness to police testimony in criminal proceedings; it is subject to the same requirements of credibility and scrutiny as any other witness evidence (STS 296/2021, of 8 April).
What is significant is not merely that the Court rejects the police account, but the reasoning employed to do so. The Chamber does not ground its decision in an a priori preference for the victims' account, but rather in the existence of multiple peripheral corroborating elements:
- the immediate search for a means of escape;
- the call to her father to be collected;
- the state of anxiety observed by third parties;
- the request for assistance from persons outside the group;
- the persistent request for access to the property's recordings;
- the immediate emotional reaction following the events.
The decision concludes that these elements are difficult to reconcile with the defence's hypothesis and constitute objective corroboration of the version maintained by the complainants, in line with the doctrine requiring the existence of objective parameters of contrast for the victim's testimony to constitute sufficient prosecution evidence (STS 119/2019, of 6 March).
From a procedural standpoint, the contradiction between the police account and that accepted by the Chamber could even raise the question of a potential referral for perjury proceedings. However, the judgment finds no sufficient evidence of deliberate untruthfulness on the part of the officers, limiting itself to rejecting the reliability of their perception of the facts, and accordingly does not order the initiation of any proceedings for possible false testimony. The constitutional foundation of this approach lies, ultimately, in the guarantee of the presumption of innocence and in the requirements that prosecution evidence must meet in this category of offences (STC 135/2003, of 30 June).
II. Consent and the Probative Sufficiency of the Victim's Testimony
The judgment equally constitutes a particularly representative example of the prevailing case law doctrine on consent and the assessment of victim testimony in sexual offences.
The Court makes extensive reference to the Supreme Court's consolidated doctrine on the capacity of the victim's testimony to rebut the presumption of innocence, provided the traditional criteria are met:
- absence of subjective lack of credibility;
- persistence in the incriminating account;
- objective plausibility of the account.
The decision expressly recalls that the victim's testimony may constitute sufficient prosecution evidence even where it is the primary source of evidence available.
Of particular interest is the manner in which the Chamber addresses the question of consent. The Court moves away from any approach based exclusively on external manifestations of physical resistance and shifts the analysis towards the overall context of the events, taking into account circumstances such as:
- the accused's physical superiority;
- the victim's isolation in an unfamiliar dwelling;
- the presence of the accused's friends;
- the intimidatory context generated by the situation;
- the complainant's immediate subsequent conduct.
The judgment thus aligns with the jurisprudential development that rejects the requirement of active, sustained or heroic resistance as a precondition for establishing the absence of consent. What is determinative becomes the finding of participation that was not freely consented to, assessed on the basis of the totality of the concurrent circumstances.
Particularly relevant is the Chamber's finding that minor discrepancies between statements made at different stages of the proceedings do not necessarily constitute contradictions capable of undermining the credibility of the account, especially where they concern accessory or peripheral matters rather than the essential core of the charge.
III. The Autonomy of the Bodily Harm Offence in the Context of a Sexual Assault
From a doctrinal perspective, one of the most interesting aspects of the decision lies in the recognition of an autonomous offence of bodily harm concurrent with the sexual assault. The issue is not trivial. The Supreme Court has consistently held that violence inherent to the execution of certain sexual offences cannot automatically give rise to an additional conviction for bodily harm, as this would constitute an improper violation of the non bis in idem principle through the double assessment of the same wrongfulness (STS 672/2020, of 9 December). Accordingly, the key lies in determining whether the bodily harm displays sufficient typological autonomy or whether, on the contrary, it constitutes a mere instrument of execution absorbed by the sexual offence.
In the case under analysis, the Court finds such autonomy because it identifies distinct factual sequences. The judgment clearly distinguishes between the initial assault which occurred at the pool area and the subsequent episode that took place in the bathroom after the complainant had already decided to leave. This temporal and functional separation allows the Chamber to identify an additional element of wrongfulness distinct from that already incorporated into the offence against sexual freedom, a criterion applied by the Supreme Court in analogous situations (STS 21/2022, of 13 January).
It is precisely for this reason that the decision presents a relatively straightforward case of concurrence of offences. The practical difficulty arises in those situations, frequent in criminal litigation, where the bodily harm derives exclusively from the force used to consummate the sexual assault and forms part of a single sequence of conduct. In such cases, the boundary between absorption and concurrence is far more uncertain and requires careful consideration of the real extent of the harm caused and its independence from the unlawful sexual conduct.
IV. The Offence against Moral Integrity: Autonomy and Threshold of Gravity
The conviction for an offence against moral integrity is probably the most novel and legally debatable aspect of the decision.
The Court considers it established that, once the principal events had occurred, the victims were expelled from the property in a degrading manner, subjected to insults, shoves and acts of contempt. Particularly relevant is the conduct consisting of removing the towel with which one of the complainants was attempting to cover herself, leaving her semi-naked in a public thoroughfare before subsequently throwing her belongings from inside the property.
On this basis, the Chamber finds the concurrence of the offence provided for in Article 173.1 of the Criminal Code. The essential legal question is whether such conduct reaches the level of serious humiliation required by case law to constitute the concept of degrading treatment.
The Court answers in the affirmative, considering that the situation created constituted an autonomous attack on the victim's dignity, distinct from and additional to the offences previously committed.
Nevertheless, this aspect is probably one of the most vulnerable points of the judgment's legal reasoning. The Supreme Court's case law consistently requires that the impairment of dignity reach a particularly significant intensity, exceeding the scope of mere occasional degradation or humiliation.
The ground of cassation could therefore be framed in terms of the constituent elements of the offence, arguing whether the facts described genuinely constitute an autonomous form of degrading treatment or whether they are absorbed by the wrongfulness already incorporated into the other concurrent offences.
Conclusions
Judgment SAP Valencia 353/2026 is a decision of particular interest insofar as it addresses some of the principal questions currently debated in the field of offences against sexual freedom.
First, the judgment reinforces the consolidated doctrine on the probative sufficiency of the victim's testimony, affording precedence to the complainants' statements over contradictory police accounts on the grounds that the former are corroborated by multiple objective peripheral elements.
The decision also aligns with the most recent case law on consent, rejecting the proposition that the absence of intense or sustained physical opposition may be interpreted as an indication of consent, and emphasising the need to assess the overall context in which the events occurred.
From the perspective of concurrence of offences, the recognition of an autonomous offence of bodily harm alongside the sexual assault offence is particularly significant. The Court considers that additional wrongfulness susceptible to independent punishment is present, offering useful criteria for distinguishing cases where bodily harm is absorbed by the sexual assault from those where a separate conviction is appropriate.
Equally significant is the conviction for an offence against moral integrity arising from the acts of humiliation following the principal events, with the Chamber finding that the exposure of one of the complainants in a semi-naked state in a public thoroughfare constitutes an autonomous attack on her personal dignity.
Finally, although the evidential reasoning of the judgment makes a potential review of the established facts difficult, the aspects relating to the autonomy of the bodily harm offence and, in particular, to the concurrence of the offence against moral integrity appear to be the areas most likely to offer the greatest scope on cassation.
