Annabel Crabb on the Spanish kiss scandal
Analysis
What would Australian law have to say about Luis Rubiales’ ‘unsolicited kiss’ in Sydney?
Spanish prosecutors are investigating Rubiales' actions against footballer Jenni Hermoso, and Australia could also have something to say about it.
On one hand we have 81 female Spanish footballers, including the entire national team that just won the Women’s World Cup, the entire coaching staff (excluding the head coach), FIFA (football’s global ruling body), the Spanish football federation and the Spanish government, and everyone with eyes in their head who can recognise sexual assault when they see it.
On the other we have the head of Spanish football, Luis Rubiales, and his mum. She is steadfast in her maternal support, reportedly locking herself inside her local church and vowing to stay on a hunger strike until poor Luis is left “in peace”. Which is certainly the Spanish word for ironic.
You surely know about what has been inaccurately reported worldwide as the “unsolicited kiss” that Rubiales planted on the lips of Spanish team member Jenni Hermoso during the on-stage celebrations of Spain’s win in Sydney. Let’s be clear: a kiss is by definition a consensual act. What Rubiales did was to grab Hermoso, pull her into close contact with his body, and lunge at her mouth with his. Hermoso has made it absolutely clear that she did not ask for, consent to or want this physical and sexual assault.
The world was watching and, whether or not it was only the public outcry that did this, authorities took notice. FIFA has suspended Rubiales provisionally; moves are afoot to have him removed from his post, and the striking players have said they will not play for their country until that happens.
Spanish prosecutors have also announced that they are investigating, and have offered Hermoso the opportunity to file a criminal complaint. Under Spanish law, what Rubiales did could constitute criminal sexual harassment, carrying up to two years in prison (but apparently jail time would be extremely unlikely based on precedents). Although the incident took place in Australia, the Spanish law has extra-territorial reach.
Maybe that’ll happen, maybe not; Spain is clearly having quite a moment here, a reckoning for its culture of rank misogyny. Spain’s Women’s World Cup campaign was already marked by the open hatred between the team and their coach, arising from allegations that he is a serial harasser and bully. Rubiales apparently felt left out, or emboldened; who knows what makes these men’s brains tick.
As the act was on Australian soil, Australian law would also have something to say about it if asked. That probably won’t happen, but there is good reason for us to contemplate it because it highlights some peculiarities in our own structural responses to sexual violence.
Under our law, there would be several legal consequences to what Rubiales did if he or the body he heads were fully subject to Australian jurisdiction. The most obvious is that, if it constituted a crime under Australian law, he could be prosecuted here.
That would run in parallel, potentially, with civil claims Hermoso could bring against her perpetrator and the entities that employ her and/or him. His actions would absolutely meet the test for workplace sexual harassment; she could also have a claim in negligence.
The interesting point here is the distinction we draw between sexual assault or sexual touching (each of which is a crime) and sexual harassment (not a crime).
In New South Wales, sexual assault (rape) is a serious criminal offence, involving sexual intercourse (penetration). Sexual touching, which used to be called indecent assault, is the touching of another person with any part of the body or anything else, in a way that a reasonable person would consider to be sexual. Both offences require an absence of consent on the victim’s part.
Sexual harassment is not a crime; rather, under federal law, it is unlawful but only creates a right in the victim to pursue a civil claim for damages. It is defined as any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the victim would feel offended, humiliated or intimidated.
A close legal analysis of Rubiales’ actions would be required to find and draw not one but two dividing lines: first, the point at which they became unlawful because they were sexual and unwanted (sexual harassment); second, when they became criminal (sexual touching).
In theory, these distinctions reflect consequences, but we know as a reality that sexual violence is a continuum, not a series of disconnected acts but a cascading process of invasion and abuse. Not everyone likes to hear non-physical, non-consensual sexual behaviour described as sexual violence, but it simply is. If we are serious about addressing violence and abuse against women, we need to learn and accept these truths. Coercive control is abuse. Grooming is violence.
To parse the sequence of individual acts that Rubiales perpetrated against Hermoso, leading to and culminating in his violent assault on her body, is to miss the central point that the whole thing was calculated and intentional, that her autonomy was disregarded and her consent treated as irrelevant.
What he did was sexual assault. I won’t be taking questions.
Michael Bradley, Crikey, August 31 2023
Cartoons
Cartoon by David Squires, The Guardian, August 29 2023
Opinion
OPINION
Nuance lost in the noise that’s enveloped Rubiales kissing furore
And now to the imbroglio ignited by Luis Rubiales, the president of Spain’s football federation, by reason of his unwanted advances towards the player Jennifer Hermoso, in the immediate afterglow of the FIFA Women’s World Cup.
Rubiales contends all was consensual when he kissed the player. But is this a criminal act committed entirely in plain sight? Or vigilantism?
If the kiss was unwarranted, there’s a criminal offence on the statute books in NSW; that of sexual touching (section 61KC of the Crimes Act).
It’s the same offence provision, that the Parramatta rugby league player Dylan Brown fell properly foul of earlier this year at The Golden Sheaf in Double Bay.
Long story truncated, it’s a criminal offence to knowingly, and without the consent of the other person, sexually touch that other person.
What is sexual touching? As the law usually is, the answer is somewhat fuzzy. Section 61HB of the NSW’s Crimes Act defines the conduct widely enough to include the offender touching any part of another person with any part of the offender’s body. Good enough so far.
The statutory test then drills deeper, into a consideration of what part of the complainant’s body was touched; whether the person doing the touching actually did it for the purpose of arousal or gratification; and whether any other aspect or circumstances of the touching makes it sexual.
Do I reckon that President Rubiales’ conduct, in dragging Jennifer Hermoso in close and planting one directly on her lips – at least that’s what appears to have happened, based on the footage from an obscure camera angle – constitutes sexual touching for the purposes of the NSW criminal law? I don’t know, but the footage looks suspicious.
But if NSW’s law enforcement officers are as manifestly concerned about this incident as at least half the world’s social media vigilantes, one expects that a criminal investigation would ensue. Perhaps we’re already at that juncture and we just don’t know it. But I suspect not.
The maximum sentence for sexual touching, under NSW’s Crimes Act, is five years’ jail. Australia’s firmly in-force extradition treaty with Spain permits extradition for offences punishable by significantly shorter stays in the Big House than that, but the Kingdom of Spain could easily refuse an extradition request for one of its own citizens.
So, that’s pretty much that then.
My hot take? Rubiales isn’t much unlike many of us. He’s kitted up in his finest Brioni suit and hitched a limo ride to the footy; copped the proper knives ‘n’ forks silver service treatment; and then, his team’s gone and won the bloody World Cup.
Infected by the excitement, Rubiales has taken his own counsel and made a properly idiotic, snap decision to fumblingly grope and kiss Hermoso.
Idiot move? Definitely, whether inebriated or not - and we don’t know if he had been drinking. Should Rubiales resign? Hard yes to that too based on the evidence so far, but has anyone gotten his side of whatever story he has to tell here?
Yes, that evidence is damning, but surely, there must be a process. For anyone who’s afraid of the process surely must doubt what a proper investigation might uncover?
And where’s the nuance that’s been lost in the noise? For the vigilantes to equate this as being football’s #MeToo moment, that strikes me as being disrespectful of the countless women, who’ve suffered much worse and nonetheless bravely come forward.
Here’s an idea. Just outlaw this whole kiss hello/kiss goodbye/celebratory double-peck-on-the-cheek routine - it’s an unnerving and ritualistic madness.
Is it a Continental thing? A personal preference thing? It’s a soup of self-doubt and angst, served for precisely no upside. The single cheek; the air kisses; or the European double cheek combo, which is a hellishly more convoluted?
The kissing greeting requires precision, balance, and dare I say, a certain level of intimacy. If the kiss hello were an art form in and of itself, it would constitute the most confusing masterpiece in the history of social interaction.
COVID-19 brought nothing good to the world except maybe for this: for a brief moment in time, the Kiss Hello Program was taken out of even FIFA’s equation. Everyone was too afraid; nobody knew whether the greeting would return, ever.
But now, the world has returned to relative (ab)normality and nobody knows quite what to do anymore. Evidently, Luis Rubiales has no idea.
The kissing thing; it’s over. Gianni Infantino, if you’re listening: no more kissing at FIFA events.
Darren Kane, The Age. 1 September 2023.
OPINION
‘Women aren’t copping that crap any more’: My open letter to Luis Rubiales’ mum
Dear Angeles Bejar,
I want to talk to you, woman to woman, mother to mother. I recognise it’s a particular kind of torture, being swept up in a global uproar, let alone one centred on the behaviour of someone you gave birth to. I understand, you must feel sick – viscerally sick - at your son being caught up in a maelstrom (of his own making). But, ever since I saw the images of you standing in a church doorway, clad in a mustard-coloured lacy dress, your face pale and your eyes rimmed with kohl, vowing to starve yourself in a fruitless attempt to restore your son’s name, I’ve wanted to take you aside and say: “Angeles, no. The man behaved like a schmuck. Don’t deprive yourself of food, tell Luis to wake up.”
Yes, I understand Luis Rubiales may be a good son, he was probably a cute toddler, a charismatic young man and is now a powerful leader. But he does not know how to respect women. The football player he kissed full on the mouth, in front of thousands of people, says he did not have her consent. We could all see it. He hugged her, wrapped his legs around her, grabbed the back of her head, then kissed her lips.
Afterwards, Jenni Hermoso said she did not like it. She later said it was “an impulsive, sexist, out-of-place act and without any consent on my part” that left her feeling “vulnerable and like the victim of an assault”.
Shouldn’t Rubiales just take responsibility for this, be an adult and a decent human? And listen to the astonishingly talented women who just won a World Cup about why they have felt tormented and controlled for years by the men supposed to be managing them? Last year, more than a dozen players complained about the behaviour of Spain’s head coach, Jorge Vilda, and made themselves unavailable for selection. Rubiales continues to doggedly champion him, along with a broader culture of sexism in Spanish football.
It’s not just the kiss. It’s the doubling down, the stern-faced defiant refusal to resign, the insistence it was consensual, and the claim “false feminists” were ruining him. It’s also the grabbing of his genitals as a victory sign – yes, clutching his willy at the very moment female athletes triumphed – and throwing another player, Athenea del Castillo, over his shoulder like a sack of potatoes, not an athletic champion.
It’s a bit weird, not cool, and the kiss, we have discovered, was potentially law-breaking. Spain has recently updated its criminal code – and almost exactly a year ago passed the “only yes means yes law” following a gang rape that occurred during the bull-running festival in Pamplona in 2016. It means that silence can no longer mean consent. This is why prosecutors have opened a case investigating Rubiales. We don’t use words like “stole a kiss” any more, as Spain’s deputy PM said. That kind of incident is not a cute little theft, but an act of aggression.
In this context, Rubiales’s incomprehension is revealing and damaging: it matters. The incomprehension of those around them matters too.
Happily, this generation won’t accept what yours, or even mine, did. Weren’t you, too, pawed by entitled men?
Watching Rubiales smash his face against Hermoso, I was reminded of an incident in my own life, that I hadn’t thought of for a long time. I was a young journalist, in a lift with a senior editor, double my age. He was always friendly and we were chatting away about something before he stepped forward, took my face in his hands and kissed me bang on the mouth for several seconds. I stood still, shocked, the doors opened and I walked out. We never spoke of the incident, which was part of an overtly sexist environment where male harassers strutted the hallways unchallenged. It wore me down, but I’d faced worse that year, and I knew that if I’d complained, in a culture of impunity, that nothing would have happened.
But I should have.
Women aren’t copping that crap any more, and it’s absolutely right. The hashtag Spanish women are using to fight is: #SeAcabó, which means “it’s over”. The entire football squad is refusing to play until Rubiales leaves his position; which will make his 90-day suspension an interesting time of reflection.
Those who don’t understand that the world is changing, has changed, will struggle. Rubiales has rightly been ridiculed for saying the kiss was “mutual and euphoric”. For whom? The win was euphoric, not the kiss.
It’s very often difficult for mothers, or parents, to recognise their child could be capable of poor behaviour. British feminists call it “Not my Nigel”. As in, “Sure, I see that men harass and mistreat women, but not my Nigel!” History is littered with case studies of women enabling close relatives to oppress women. You told reporters: “There is no sexual abuse as there is consent on both sides, as is shown in the images. Why are they being cruel to him? … He is incapable of harming anyone.”
Hermoso says differently – it was all caught on camera. And yet you have indicated you will die for your son, you will refuse to eat until everyone can see reason. You said: “I will stay here as long as my body holds out. I don’t mind dying for justice because my son is a decent person.”
It’s now been reported you are in hospital, suffering from fatigue and anemia. This is what the patriarchy is built on: female pain, female complicity, female self-denial. This is what male denial, and impunity, relies upon.
I’m wondering if we all might learn something from the female orcas. A study published in Current Biology found that the mothers of these killer whales protect their sons when they fight. Analysis of 47 years worth of orca data found male orcas had fewer tooth marks if their mothers were post-menopausal, and alive. Crucially, they found, that mothers don’t physically butt in to fights, “they probably use their influence to prevent violence in the first place”.
Seems a salient point.
Julia Baird, The Age. 2 September 2023
The unwanted Spanish soccer kiss is textbook male chauvinism. Don’t excuse it
by Moira Donegan in The Guardian, September 3 2023.
