The minor did not require medical assistance.
The reason for the attack was “because he cried and did not fall asleep”
The Supreme Court has upheld the sentence 4 months in prison for a crime of abuse in the family sphere that was imposed on a father by give a strong smack to the buttocks her four-year-old daughter, causing injuries that did not require medical attention.
The Criminal Chamber understands that “no protection” finds in its jurisprudential criteria, “a strong whipping on the buttocks of a minor under four years of age, which causes injuries even if it does not require medical assistance, being of such intensity that leave a mark on the hand; all the more so if the motive that generated the aggression is merely that he cried and did not fall asleep“.
Separated and with joint custody
The plenary session of the Criminal Chamber, which advanced this ruling on May 31, thus dismisses the appeal filed by the convicted person against the judgment of the Provincial Court of Valladolid that confirmed the one issued by a Criminal Court of the same city.
In addition to the aforementioned prison sentence, the court imposed the prohibition to approach less than 500 meters from his daughter for 1 year and 4 months and the payment of an indemnity of 200 euros.
According to the proven facts, the convicted man was separated from his wife and had the shared custody of their two minor children.
On June 8, 2019, when they were with him at his home, he gave his 4-year-old daughter “a strong whip” on the buttocks, who did not want to sleep and did not stop crying.
As a consequence, the girl suffered a evolving ecchymotic area of 7cm by 4cm and on the right buttock another more tenuous area of 3 by 2 cm, which did not require medical assistance and which cured in 4 days.
The sentence, presented by magistrate Andrés Palomo Del Arco, explains that the appeal incurs in causes of inadmissibility since it does not justify the appeal and does not allege any contradiction with the jurisprudence of the Chamber or the existence of contradictory jurisprudence of the Provincial Courts.
In addition, it raises new questions that were not formulated in the appeal before the Provincial Court of Valladolid and on which the appealed judgment could not pronounce, for which reason it also rejects them.
Sentence
The sentence includes a particular opinion of the magistrate Pablo Llarena in which it states that the appealed sentence contradicts the doctrine of the Chamber and that the “fair, humane and prudent” solution was the acquittal of the accused, since the proven facts are not subsumable in the criminal type whose improper application is denounced.
The magistrate considers that the consequences of the punishment, “despite its exceptionality and proscription, lack sufficient entity to criminalize the action.”
“The normality of the context of paternal-filial coexistence that is described, together with the fact that the facts are detailed as an isolated act”, and not of continued abuse, together “with the circumstance that the physical correction consisted of inflict a spanking on the ass (which is generally accepted as the least damaging physical punishment and as the most adjusted to the young age of the minor), prevents us from appreciating the unlawfulness of the action being prosecuted”, points out Llarena.
Although he admits that one of the lashes “it had to reach a relevant intensity and that generated a slight ecchymosis”, the forensic medical expert test carried out, he points out, evidenced “the lightness specifying that no medical assistance was convenient for the healing of the vestiges of the aggression”.
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“In the face of an incident of minor importance and of an isolated nature that did not entail any difficulty of integration into the life experience of a minor under four years of age, the reaction is worthl introduces an immediate shutdown in the minor’s relationship with his father and imperatively subjects him to a single-parent family experience”, he warns.
And it is that he observes “a severe risk that prison sentences and the long distance imposed, end up vitiating what will be their parent-child relationship until adulthood”.