Chemical submission in court: convictions for abuse even if the substance cannot be detected

In Spain, the courts sentence more than a thousand people each year for abuse, but the statistics do not reflect how many of these sex offenders have used a drug or substance to subdue their victims. The sentences of the cases documented in recent years reveal the difficulty in detecting the substances used by the abusers and the way in which they reached the victim’s glass. The speed in reporting the facts and undergoing medical tests is key so that an abuser can be convicted not only of the sexual crime but also for using chemical submission to attack his victim. Very few of these sentences go so far as to determine which substance annulled the woman’s will.

The convictions of chemical submission cases issued in the last year by the Spanish courts draw a similar scenario: a woman who is in the company of one or more men whom she previously knows and who, after taking a sip of her drink, he loses consciousness or at least control over his body. But by the time the victims are examined by a forensic examiner, urine or blood tests are not capable of detecting the substance and this places it in the realm of supposition or probability that a sentence can declare proven that, indeed, there was chemical submission provoked –and not just taken advantage of– by the abuser.

A clear case is that of three men convicted in Barcelona for abusing two women using chemical submission. The Supreme Court itself highlights that the victims contacted the Police as soon as they left the home and that a few hours later they were undergoing urine or blood tests. That allowed revealing that the abusers had taken advantage of an oversight of the victims to put methoxetamine in their beers. This substance, says the sentence, is detected in the blood “immediately after consumption” and for “a few hours” in the urine. Then, it disappears from the body without a trace. In this case it was detected in the victims’ urine tests but not in their blood samples.

The symptoms described by the victims in this case – which has ended with sentences of almost seven years in prison for the abusers – are similar to those described by other women in other legal proceedings. Recently, the Superior Court of Justice of Madrid has imposed five years in prison on a man who in 2018, in a bar in the capital, supplied a woman with an “unspecified substance” in an “uncredited” way, but who had the same effect: where the Barcelona victims said they were “paralyzed and powerless” by the methoxetamine, the Madrid victim described that she “couldn’t even speak, couldn’t vocalize”.

The two cases developed differently but have ended in prison sentences under article 181.2 of the Criminal Code, which punishes anyone who abuses a person “by overriding the will of the victim through the use of drugs, drugs or any other substance “. In the case of Barcelona, ​​the Justice was able to determine what substance annulled the will of the woman and in the case of Madrid it was not possible. His blood and urine tests, carried out three days after the events, were negative, but the coroner made it clear that substances such as scopolamine or burundanga can only be detected “in a maximum of six hours, still being difficult to determine analytically.” .

It is key, therefore, to be able to detect what type of substance has been used by the abuser to support his conviction, but it is not an enforceable requirement if, as in the case of the woman attacked in a Madrid bar in 2018, there is other evidence that lead to chemical submission as the only possible conclusion: the explanation of the victim, that of a friend to whom she wrote at that time and the forensic reports that consider these symptoms compatible with the intake of some substance or drug that she did not remember having taken .

The Supreme Court has repeated ad nauseam in its rulings that the time it takes for a woman to report a sexual offense does not affect her credibility. It is a “rare and not infrequent delay in relation to crimes against sexual freedom”, as the courts have said in one of these proven chemical submission cases. But in this type of case, speed is key to being able to detect the presence of substances with an analysis.

Last April, the Canarian courts confirmed the acquittal of two men accused of abusing a woman in a caravan parked in Costa Calma, where the 2016 windsurfing world championship was being held. They were acquitted for lack of evidence that their relationship with one of them had not been consented and that she had been annulled by alcohol or another type of substance. A sentence that certified the innocence of the two defendants but regretted that no analysis had been carried out on the complainant to try to reliably prove whether or not she was actually under the influence of a substance.

“The resolution would not have been reduced to a doubt protected by the presumption of innocence, when medical advances allow it to go further,” lamented the Superior Court of the Canary Islands. “Advances in forensic science, together with medical science, must be present when this type of crime (and even others) is reported in order to transform an «in dubio pro reo», for a conviction or an acquittal, into according to the facts denounced and duly accredited”, explained that acquittal sentence. In the absence of “a shred of proof” of a sexual offense, the two were exonerated.

The courts themselves regret, therefore, that on occasions and for various reasons the complainants of chemical submission do not submit to an analysis or do so too late, which would provide certainty to their decisions. That explains it too forensic action protocol in the face of the sexual violence of the Forensic Medical Council of 2021: “It is necessary to encourage the chain that makes up the different legal operators as well as the State Security Forces and Bodies, so that they are interested and/or agree, regarding the victims who denounce sexual abuse, different analytics in order to be able to prove, or not, their manifestations”.

Many sentenced cases reveal that the abusers usually know something about the victim and that in that trust they take advantage of carelessness to introduce the substance into their drinks. A recently resolved case in Euskadi reveals another type of assault: a man who, on January 1, 2015, assaulted a young woman in Lasarte who was returning from celebrating New Year’s Eve. He did it with a bra cup impregnated with various substances that made the victim lose consciousness and then abused her.

In that case, the Justice described the case as a sexual assault and imposed nine years in prison, confirmed last May by the Superior Court of Justice of the Basque Country. The culprit is also a serial rapist convicted of several sexual assaults in Lasarte and Beasain. Analysis of the bra cup he wore provided the list of substances he had used to neutralize his victim: trichloromethane, hexachloroethane, methosinaphthalene, lilial, hexisalicylate, alpha-cinnamic aldehyde, and isopropyl myristrate.

The Penal Code reflects the possibility that an abuser uses chemical submission to classify an abuse as “non-consensual”, placing him at the same level as people “deprived of meaning”, for example by the voluntary intake of alcohol. This is reflected in cases in which the judges condemn the sexual offender even though they express their doubt as to whether the woman was unconscious for one thing or the other, without this ceasing to be a crime of sexual abuse.

This was the case in a case that occurred in Valencia in the summer of 2019 and was sentenced at the end of last year by the Provincial Court. A woman who stayed for dinner with a friend and who suffered abuse that she could not oppose due to the state she was in. The judges imposed five years in prison for abuse and reflected on the proven facts that she was “incapable” of objecting well to drinking alcohol during the night or “perhaps also other substances that the accused could have poured into his glass taking advantage of an oversight “. At the level of the Penal Code, today, it is the same for an abuser to take advantage of his victim’s drunkenness and for him to provide her with some substance to bend her will.

Another similar case resulted in designer Chu Uroz being sentenced to two and a half years in prison for abuse in Barcelona. According to the Catalan courts, in 2017 he met a photographer for professional reasons but abused her in her studio taking advantage of her condition. At first, the Barcelona Court condemned her by declaring proven that she lost the ability to decide or oppose after Uroz secretly supplied her with “an indeterminate substance in one of her drinks”.

The Superior Court of Catalonia, last January, reduced his sentence from four to two and a half years in prison, upholding his appeal and, among other things, withdrawing due to lack of evidence from the account of proven facts that Uroz supplied him with some drug. The defendant, the judges said, “knew and was perfectly aware of the state in which the woman was” for having drunk, but “without sufficient evidence that chemical substances had been supplied to her.” “It cannot be determined with certainty the moment in which the complainant ingested, if she did, any substance that later led to amnesia, but only that she was in a severely limited state of consciousness that prevented her from consenting,” they settle. the judges. The reduction of her sentence did not come from this change in the proven facts, but from taking into account an extenuating circumstance of undue delay and another of reparation for the damage.

Other cases end in acquittal but not because of the inability to determine the drug that annulled the victim, but because of the lack of evidence that the abuse occurred. One of these processes was the one revealed by elDiario.es and for which the Justice put several young people on the bench, two of them civil guards, accused of drugging and raping a young woman in Madrid. All ended up acquitted in a sentence that not only did not find any evidence that they introduced any substance in their drink, but also understood that there was no evidence that pointed to a non-consensual sexual relationship.

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