Kissing someone without their 'consent' is sexual assault, Spanish court rules months before country's disgraced FA chief faces trial over Jenni Hermoso 'kissgate' scandal

Kissing someone without 'tacit consent' can be considered sexual assault, Spain's Supreme Court has ruled, just weeks before former football federation chief Luis Rubiales will stand trial over his unsolicited kiss at the Women's World Cup.

The court upheld a lower court ruling from the southern region of Andalusia which convicted a police officer of sexual assault and sentenced him to one year and nine months in jail for kissing a woman on the cheek who was in police custody.

'A "stolen kiss", and thus without express or implied consent, constitutes sexual assault in actuality,' the court said, adding that 'it is clear that the fleeting contact of a non-consensual kiss represents a bodily invasion'.

'A "no" from the victim is not necessary in the face of attempts to kiss a woman, but rather that for there not to be a crime, what is needed is consent. The key is consent, to the point that if consent has not been given, there has been sexual aggression.'

The issue of whether an unsolicited kiss can be considered sexual assault is being debated in Spain since Rubiales provoked worldwide outrage by kissing star player Jenni Hermoso on the lips during the medal ceremony after Spain beat England to win the World Cup in Australia last year.

President of the Royal Spanish Football Federation Luis Rubiales (R) kisses Jennifer Hermoso of Spain (L) during the medal ceremony of FIFA Women's World Cup Final on August 20, 2023

Former Royal Spanish Football Federation (RFEF) chief Luis Rubiales arrives at the National Court in Madrid, Spain, 15 September 2023

At the time, Rubiales, 46, brushed it off as 'a consensual' peck on the lips, but Hermoso, 34, said it was not.

She filed a lawsuit against Rubiales in September, telling the judge she had come under pressure to defend him both on the flight back from Australia and on a subsequent team holiday to Ibiza in the Balearic Islands.

In her testimony, she said she had faced 'constant harassment by the parties under investigation, which disrupted her normal life, causing her anxiety and distress'.

Numerous other witnesses have testified before the judge about the pressure faced by Hermoso, among them two-time Ballon d'Or winner Alexia Putellas and two other Spanish teammates.

Rubiales is set to stand trial from February 3 to 19 over the kiss. Public prosecutors have requested a sentence of two-and-a-half years in prison for Rubiales - one year for sexual assault and 18 months for coercion.

The former federation chief, who quit his post last year in the wake of the controversy, told private Spanish television station La Sexta in April that he could not understand how it could be labelled as sexual assault, saying there was 'no sexual context' to it.

Rubiales was banned from all 'football-related activities' by FIFA for ninety days, extended to three years after its Disciplinary Committee found he had breached its Disciplinary Code. 

Spain's player Jennifer Hermoso leaves after an audience at the Audiencia Nacional court in Madrid on January 2, 2024

A number of Spain players signed a statement saying they'd refused to play for the national side until Rubiales was removed.

'The changes made are not enough for the players to feel safe, where women are respected, where there is support for women's football and where we can maximise our potential,' the players said in a statement. 

A total of 39 players, including 21 of the 23 World Cup winning squad, then signed a letter demanding further changes within the Spanish FA. 

Eventually, on September 10 last year, Rubiales did resign as Spanish federation president and also from his role as a UEFA vice-president, having been provisionally suspended by FIFA pending investigations.

Rubiales was also banned from contacting Hermoso or being within 200 metres of her. 

Hermoso and Rubiales pictured after Spain's win over England last August, in Sydney

Rocio Galvez is congratulated by President of the Royal Spanish Football Federation Luis Rubiales (R) next to Spain's Jennifer Hermoso after winning the Women's World Cup

A week later it was reported Rubiales was selling his £1.2mn home in Madrid 'amid growing legal fees' connected to the case.

The two bedroom property is said to feature a swimming pool and underfloor heating, and is located close to Madrid's city centre. 

Rubiales was later banned from all football-related activity for three years. 

A FIFA statement confirming the decision last October read: 'The FIFA Disciplinary Committee has banned Luis Rubiales, the former president of the Spanish Football Association (RFEF), from all football-related activities at national and international levels for three years, having found that he acted in breach of article 13 of the FIFA Disciplinary Code.'