The “Herd”

1. Key facts of the case

In accordance with the facts declared proven by the Provincial Court of Navarra (SAN 38/2028, of 20 March), the court that tried the case in the first instance, on 7 July 2016 in the town of Pamplona, where the popular “San Fermín” festival was being celebrated, an 18-year-old woman was led to a doorway by a group of 5 men aged between 25 and 28. There, the men performed various sexual acts against the woman´s will, including penetration.

These acts were recorded in several videos and photos taken by the men involved. After the acts, the men left the woman at the place of the attack and took her mobile phone with them. Later, in a WhatsApp group called “Manada” –“Pack”-, shared by the convicted men and other people, one of the men involved in the sexual acts wrote
comments boasting about the events that had taken place.

From the moment the facts were made public, the case received significant media attention, which increased even further during the trial. The strategy of the defence was based on alleging that the sexual relations had been consensual, contrasting the victim’s testimony with, among other means, an expert report resulting from monitoring of the victim in the months following the complaint and analysis of her activity on social networks. This confrontation in the courtroom was reflected in the media, giving rise to significant public debate that mobilised the feminist movement.
In April 2018, a conviction for the crime of sexual abuse was handed down at first instance. The court considered that, although the sexual relations had not been consensual, the defendants had not used violence or intimidation to coerce the victim, so they were not convicted of rape. This ruling outraged part of Spanish society, which demanded a conviction for rape and considered that the decision called into question the victim’s credibility.
The sentence was appealed by several of the parties involved and the case was reviewed by the Supreme Court in 2019. In this second judgement, the high court considered proven the existence of intimidation and, therefore, convicted the defendants of rape. In consequence, the prison sentences for the sexual offence were increased from 9 to 15 years.

2. Applicable law

According to the court that investigated the case, the Court of First Instance and Preliminary Investigation No. 4 of Pamplona, the accused faced charges for crimes of sexual assault, as well as a crime against privacy -for the recording of the events- and another of robbery -for the theft of the victim’s mobile phone1. As offences of sexual assault carry abstract punishments of more than 9 years imprisonment, the investigating body opened the ordinary summary proceedings, and once the investigation had concluded, transferred the summary proceedings to the Provincial Court of Navarra for it to hear the case (the competent court according to the Criminal Code for the trial of offences with abstract sentences of more than 5 years’ imprisonment, among other matters).

In its final conclusions, the Public Prosecutor’s Office, the private prosecution and the “people’s prosecution” requested the following sentences for all the accused:
For the acts of a sexual nature, a sentence of 18 years and nine months imprisonment was requested, “special disqualification” for the duration of the sentence, prohibition from approaching the victim for 20 years and probation for 10 years after release. This request stems from the understanding that the facts constituted the crime of rape (art. 179 CP) – punishable by between 6 and 12 years in prison – aggravated by the fact that it was committed with violence or intimidation “of a particularly degrading or humiliating nature” (art. 180.1 1º) and because it was committed by the joint action of several persons (art.180.1 2º) – the concurrence of both circumstances increases
the prison sentence to between 13 years 6 months and 15 years. Furthermore, as the prosecution understood that several crimes of the same nature were committed on the same occasion, it considered it a case of “continuous” sexual assault – punishable with between 15 and 18 years and 9 months imprisonment.

For the offence against privacy (art. 197.1 CP), sentences of 3 years and 3 months imprisonment, as well as a fine of 20 months and one day were handed down.

For the crime of robbery (art. 242.1 CP), 2 years and 9 months imprisonment was imposed, as well as “special disqualification” from being elected as a public representative for the duration of the sentence.

3. Criminal proceedings

The morning after the events, on 7 July, the victim was found by a couple walking in the area and they alerted the local Municipal Police. The victim was taken to the health services and the Policía Foral de Navarra -“Navarra Police- began the search for the suspects, who were located a few hours later. On 9 July, the accused were taken to court and the Judge of Preliminary Investigation remanded them all in custody without bail, as they were charged with several offences against sexual freedom and indemnity and the judge considered that there was a risk of flight. A month later, on 8 August, in a new decision, the judge ratified the pre-trial detention but, in this case, imposed a bail of €500,000 for each defendant (none of the defendants were able to meet this bail).

On 17 October, the investigation was completed, and the Judge of Preliminary Investigation transferred the case to the Provincial Court for trial, which began on 13 November 2017 and ended on 28 November 2017.

The prosecution in the trail was brought by the Public Prosecutor, the victim acting as private prosecution, as well as the Government of Navarra (the regional government) and Pamplona City Council, both acting as public prosecution. As mentioned above, the court did not find that the defendants had resorted to violence or intimidation, but rather that they had taken advantage of a situation of manifest superiority to restrict the victim’s freedom (art. 181.3 CP) and therefore convicted them of the crime of sexual abuse with penetration – punishable by between 4 and 10 years’ imprisonment. Both the convicted and prosecuting parties, including the public prosecution, filed a cassation appeal before the Supreme Court, so the criminal chamber of the high court reviewed the facts deemed proven in the trial and issued a new sentence on 21 July 2019 (STS 344/2019). This new judgment increased the penalties for the non-consensual sexual acts to 15 years, based on the consideration that the facts constituted the crime of rape.

Before this second sentence was handed down, the defendants were on provisional release, as on 21 June 2018 – having served almost 2 years in pre-trial detention, the maximum allowed under Spanish law – the Navarra High Court authorised their release on bail of €6,000 and with the obligation to appear before the court three days a week, to have their passports withdrawn, and to be prohibited from leaving the country without judicial authorisation or from going to the autonomous community of residence of the victim.

4. Disclosure of information

Following the arrest of the perpetrators, the Policía Foral de Navarra issued a press release stating that five young men had been arrested on suspicion of sexual assault. That same day, Pamplona City Council issued a communiqué2 denouncing the aggression and calling on the public to participate in a rally at 9 p.m. to condemn the aggression. After these initial communiqués, no further press releases from authorities or institutions could be found up to the time of the ruling.

However, many details of the case reached the press in that period of time, coming from the various orders issued by the judicial authorities, from the parties involved and from leaks of unknown origin. Thus, the indictment issued by the Judge of Preliminary Investigation on 9 July reached the press, which meant that from the very first moment it was made public that there was a video of the aggression, fragments of the victim’s statement, the initials of the suspects at the time and that they were from Seville3. The same source also indicated that one of the perpetrators
was a member of the Guardia Civil -one the Spanish police forces- stationed in Cordoba, but it is not known how this information reached the media.

In the days leading up to the trial, the media published information on every order or decision issued by the court (admission and inadmissibility of evidence, expert reports presented, trial on camera, etc.). These news items and those that would follow during the trial were illustrated with security camera recordings from the day of the events, in which the perpetrators appear with their faces completely blurred. It is also not known how these images collected by the state security and law enforcement agencies reached the media.

5. Media coverage

The case received significant media coverage and many details of the trial were published in the press. It should be noted that in the news of 9 July, in which the charges against the suspects were reported, we can find photos of the alleged perpetrators. At least one of the media outlets that echoed the judge’s order – El Español – illustrated the aforementioned information with a photo of three of the detainees, in which they are not identifiable as their faces are blurred4. In the following days, although it has not been possible to identify the exact moment, it also became public that one of the perpetrators was a member of the Spanish army.

On 10 July, a Navarrese digital newspaper (navarra.com), a regional subsidiary of the national newspaper “El Español”, published another photo of the perpetrators, again with their faces blurred5. The photo, which shows the five perpetrators, was obtained by the media because it was uploaded to social networks by one of them hours before the events took place. This photo was used by various media outlets to illustrate several of the news items published about the case in the following months. It should be highlighted that on 6 July 2016, the morning show “Espej Público”, on the television channel Antena 3, illustrated its discussion of the case with this image, but used such limited pixilation that the faces of the men under investigation are perfectly recognizable. Several media opted to use this image without carrying out any form of anonymisation, as is the case of “El español”, which – on 31 October 2016 – was the first to use the image without pixelating the faces6. In addition, the caption of this image includes the full names of all the perpetrators.

No further details of the case were known until 17 August, when the newspaper “navarra.com” published one of the images taken during the events, in which one of the perpetrators appears. In this photo, the individual was on his back and naked from the waist down, but with his neck turned towards the camera. Although the image was not of high quality, his face could be seen, and was not anonymised7. In addition, this piece also includes the full name of the individual in the photo.

The same article also includes the existence of the Whatsapp group called “Manada”, and the conversations of its members – most of whom are friends of the perpetrators and unrelated to the events – during the night of the events and the following days. Reviewing the newspaper archives of El País, the main Spanish daily newspaper (Figure 1), it can be seen that the case did not receive special attention in the media until the days prior to the trial.

However, the case did not stop appearing in the media altogether, as during this period a sexual abuse complaint filed by another young woman against 4 of the perpetrators of this case became known. The media generated news echoing the different orders issued by the Court of First Instance and Preliminary Investigation.

The same procedure is also observed in the case at hand, every decision of the court was reflected in the media during the pre-trial stage. News reports were illustrated both with the aforementioned security cameras and with photos of the perpetrators from their social media profiles. These are usually pixelated. However, the level of anonymisation is relative, and it is worth noting by way of example a video published by the newspaper “El País” on 23 April 2018 in which the anonymisation simply consists of a blurred line at eye level, so their faces are fully recognisable8 . During the trial, and despite the fact that it was heard in closed court, the media were reporting on its progress, including witness statements and the expert reports presented.

Once the judgment was published, the popularity of the case reached its peak, the media stopped anonymising the images and all the information was published with the faces of the convicted and their full names.

Finally, it should be noted that until the publication of the sentence, the media referred to the perpetrators as “alleged”, or as being “accused of rape”. However, they are also referred to on multiple occasions as “members of La Manada” -members of the Pack- or simply as “La Manada”.

6. Impact on the suspect or accused person and on the general public

As soon as the facts became public, Pamplona City Council called a rally in condemnation. As the details became known, the case gained more and more media attention and was the subject of debate on many television shows. The lawyer for three of the perpetrators was interviewed on several occasions on different talk shows9, and one of them even interviewed a young woman who had had sexual relations with one of the perpetrators hours before the events took place10. In these shows, the perpetrators’ lawyer defended the innocence of his clients by comparing the victim’s statement and claiming that the sexual relationship had been consensual. This debate about whether the sexual relationship had been consensual or not, as the victim claimed, became a debate about the credibility of the victim’s testimony and was at the centre of the media debate regarding the case. The various journalists and “expert collaborators” on the radio and television talk shows aligned themselves with one position or another, and were joined by various guests on the programmes, such as feminist activists11 or former prosecutors12.

Once the conviction for sexual abuse was announced, the popularity of the case reached its peak, as a section of Spanish public opinion considered that the sentence questioned the victim’s testimony and did not understand why the accused were not convicted of rape. This indignation was translated into social media campaigns through hashtags such as #noesno or #yositecreo. In the three hours following the publication of the sentence there were 466,864 posts on twitter related to the case. By observing the messages of the users, it can be seen that one in 3 users considered the ruling outrageous or spoke of “indignation related to the sentence”, in addition, almost 15% of them spoke of “shame” and 8% associated it with “sexism”13. The outrage was also translated into numerous demonstrations throughout the country, which were publicised and supported by the main left-wing political parties14, including the party in government at the time, the PSOE15. It should also be noted that in the wake of this case these parties announced their willingness to reform the section on crimes against sexual freedom and sexual indemnity in the Spanish Criminal Code to make any sexual relationship without consent constitutive of the crime of rape. It is not yet known whether this change will be merely nominal or whether it will be accompanied by a general increase in penalties for this type of crime.

Sources

Ordinary Summary No. 1670/2016, the Court of First Instance and Preliminary Investigation No. 4 of Pamplona

El País, Cinco detenidos en Pamplona por agresión sexual, 13 July 2016.

El Mundo, Five arrested in Pamplona as alleged perpetrators of a sexual assault, 7 July 2016.

El Mundo, The five sex offenders in Pamplona recorded the rape, 9 July 2016.

Navarra.com, The accused in the San Fermín rape cheered and cheered each other on, claiming their turn to abuse the girl, 9 August 2016.

Navarra.com, The Military Emergency Unit suspends the soldier in provisional prison for the rape of 7 July, 6 August 2016.

El Español, Un cómplice del Prenda pide que un psiquiatra examine a la denunciante de la violación de San Fermín, 31 October 2016.

Navarra.com, Los WhatsApp de los detenidos por la violación de San Fermín: “Follándonos a una entre los 5. Puta pasada de viaje, 17 August 2016.

El País, La sentencia del juicio por violación a los miembros de la Manada se leerá el jueves, 23 April 2018.

La Vanguardia, El tenso rifirrafe en El programa de Ana Rosa con el abogado de La Manada, 22 June 2018.

Antena 3, Un nuevo testigo podría dar un vuelvo a la versión de la supuesta víctima de “la manada”, 10 November 2017.