Spain’s ‘MeToo Moment”: Sexual Touching or Blown Out of Proportion?

Unless you’re not into the world sport of football, or as we call in here in Australia, soccer, you’ll know Spain’s 1:0 win over England in the FIFA Women’s World Cup final was marred by controversy after the president of the Royal Spanish Football Federation (RSFF), Luis Rubiales, grabbed and kissed star player Jennifer Hermoso on the lips at an award ceremony following the monumental event, as the world watched on with jaws ajar.

Spain’s #MeToo Moment

Social media immediately went into overdrive following the incident, dubbing it as Spain’s “#Metoo moment” – and battle lines were drawn. 

It seems almost everyone, from soccer fans to politicians to social media buffs, have had something to say about the incident with some seeing it as a mysoginistic and arrogant abuse of power, and even amounting to what would be known in New South Wales as the criminal offence of sexual touching, and others as nothing more than a thoughtless, spur-of-the-moment act that has been exaggerated given its context. 

Differing interpretations

In the days that followed the incident, Ms Hermoso communicated via social media that the kiss was something she “didn’t expect” and “didn’t like”; in other words, was non-consensual under the law.

Mr Rubiales fired back, blasting the mass criticism levelled at him on the basis the kiss was not only consensual, but was initiated by Ms Hermosos. He referred to the kiss as a “peck” 

Since then, Ms Hermoso and 23 of her teammates have gone on strike, refusing to play any more matches until there are “changes in leadership”, and coaches all around Spain have quit in support of the championship winning team. 

Here come the lawyers 

Spain’s Association of Professional Soccer Players (FUTPRO) has defended Luis Rubiales, speaking of “unjust” campaigns and “fake feminism.” 

The Federation has released a number of images in an apparent attempt to prove that Ms Hermoso consented to the conduct, and has threatened to take defamation proceedings against Hermoso for lying and thereby tarnishing the reputation of the soccer chief.

Exactly what that legal action pertains to is not yet clear. But the furore is not subsiding. 

Statement released by complainant

Ms Hermoso has now released a statement to the effect that she felt pressured into supporting or justifying Rubiales, but chose not to do so. 

“I felt vulnerable and a victim of aggression, an impulsive act, sexist, out of place and without any type of consent from my part. In short, I wasn’t respected”, she added.

“As world champions we do not deserve a culture so manipulative, hostile and controlling. These types of incidents are added to a long list of situations that us, the players, have been [enduring] for the last few years, for what has been done, for what I have experienced, this is only a drop in a full glass and only what the whole world has been able to see. Acts like these have been part of daily life in our national team for years.” 

World federal stands down soccer chief

For its part, FIFA – the world governing body for soccer – has made the decision to suspend Rubiales after he refused to resign.

The suspension is initially for a three month period and applies to “all football-related activities”, while the governing body conducts its own investigations. 

FIFA has confirmed it has commenced these investigations which are intended to determine whether or not he has violated the game’s “basic rules of decent conduct.” 

Further allegations of Rubiales’ alleged “inappropriate” behaviour towards women are now also starting to circulate, including footage of him “grabbing his crotch Sydney’s Stadium Australia on 20 August this year.

Public apology

The pressure led Rubiales to publicly apologised, saying:

“There is also something I regret and it’s over something that happened between a female player and myself who enjoy a magnificent relationship the same as I have with other women players. I’ve no doubt made a mistake and I have to admit it.”

Courts could be called upon

In this case, FIFA will conduct its own investigations and there is speculation that if its actions – as well as those of Spain’s regulatory body for soccer, FUTPRO are unacceptable to eitherparties, the saga could be left to play out in the courts.

It’s also reported that Spanish Football Associate president Miguel Ángel Galán has filed a complaint with the Prosecutor’s Office in Madrid and the State Attorney General’s Office alleging Rubiales’ actions towards Ms Hermoso constituted the crime of sexual assault under the nation’s broad definition of the offence.

There is currently no indication Mr Rubiales will be charged with a criminal offence.

But what if the act occurred here in New South Wales?

Could the conduct amount to sexual touching?

In our state, the Mr Rubiales’ actions could potentially amount to the offence of sexual touching under section 61KC of the Crimes Act 1900 (NSW), which carries a maximum penalty of five years in prison.

The likely areas of contention would be whether the prosecution is able to prove beyond a reasonable doubt that:

1. The conduct was not consensual, and
2. The conduct was sexual.

The footage of the incident as well as the testimony of both Ms Hermosa and Mr Rubiales would be critical in determining the first question.

In determining the second, the law states that ‘sexual touching’ is where a person touches another without consent:

• with any part of the body or with anything else, or
• through anything, including anything worn by the person doing the touching or by the person being touched,

where a reasonable person would consider the touching to be sexual.

Matters that are taken into account when deciding whether a reasonable person would consider touching to be sexual include:

• whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or
• whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or
• whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.

So under the law in New South Wales, and provided the prosecution are able to prove the absence of consent, questions that would need to be asked are whether Mr Rubiales engaged in his conduct “for the purpose of obtaining sexual arousal or sexual gratification” and whether any other aspects of the conduct – including the circumstances – would lead it to be categorised as sexual.

Given the high standard of proof borne by the prosecution, it could be argued that prosecutors would have a hard to establishing the conduct as sexual given its nature and the context in which occurred.

Prosecutors may, however, be able to prove the offence of ‘common assault’ which does not require proof that the grab and kiss was sexual in nature, but merely that it was non-consensual and intentional or reckless.