What would Australian law have to say about Luis Rubiales’ ‘unsolicited kiss’ in Sydney?

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.