The tiktoker and instagramer Naim Darrechi is leading the latest controversy on social networks after stating in an interview with the youtuber Mostopapi that “he cannot have sex with a condom”. The influencer , who has millions of followers on various platforms, reported that, after realizing that he had “never” gotten a girl pregnant after “so many years” without using a condom, he began to ejaculate inside them “without any kind of problem”.

After this confession, his interviewer asked him if his sexual partners did not reproach him for this fact, to which he answered yes, but that he “tells them” that “she is sterile”: “Don’t worry, I’ve had surgery to not have children,” I say.

Although according to the statements of the young man, for which he has already apologized through his Instagram account, he would be deceiving his sexual partners about his supposed sterility and this could condition their consent, according to the experts consulted by it would be difficult to impute a criminal act, in accordance with current legislation. 

A crime of sexual abuse could be contemplated although there are no known precedents for sentences in Spain, according to criminal experts

When asked whether lying about a supposed sterility with the sole purpose of ejaculating inside a woman could be a criminal act, the experts consulted by agree that it is not a simple case from a legal point of view. Josep-Maria Tamarit Sumalla, professor of Criminal Law at the Universitat Oberta de Catalunya, explains to this newspaper that in the event that the woman is of legal age, she could be charged with a crime of sexual abuse which, according to article 181 of the Code Criminal , are those acts that violate “against the freedom or sexual indemnity of another person” without the existence of violence or intimidation and without consent. According to Tamarit, it could be understood that, although If there was consent to maintain the sexual relationship, this would not be valid since there would be a deception (affirming that the operation has been performed and that it is sterile) which would essentially and decisively condition the consent. 

In the same sense, the professor of Criminal Law at the Autonomous University of Madrid, Manuel Cancio, who points out to that he could be sentenced for sexual abuse, manifests itself. “It could be considered that consent expressly refers, as a condition, to maintaining relationships with someone who is sterile and that, in such a case, it would not be valid due to the implicit deception in affirming that the man is, not being so,” he indicates. . Cancio indicates that what is most similar to the practice that, according to Darrechi, he carries out with his sexual partners, is the so-called stealthing.(“silently” or “in stealth” in its English translation): assure the woman that a condom is used, but not use it. “If there is consent for penetration with a condom, that does not imply that she has consent for penetration without using it,” she clarifies. 

For this practice of stealthing , the Investigating Court number 2 of Salamanca sentenced a man in 2019, considering it “a crime of sexual abuse” to the woman with whom he had sexual relations. Likewise, the Superior Court of Justice of Andalusia confirmed on July 8 a sentence of four and a half years in jail for a crime of sexual abuse of a man who took off his condom during a sexual relationship without her consent and who, in addition , the contagion of a sexually transmitted disease. 

In any case, both criminal experts agree that they do not know of precedents in Spain for cases such as the one recounted by the tiktoker and instagramer Naim Darrechi that have reached convictions. In addition, Tamarit clarifies that, in the event of accusing the young person of a crime of sexual abuse, his defense could argue that abuse through deception is only punishable, according to article 182 of the Penal Code, when there is a victim under 18 years of age and over 18 years of age 16.

According to the Ministry of Equality, “it may be considered a sexual assault” when the Organic Law for the Comprehensive Guarantee of Sexual Freedom is approved. 

On July 6, the Council of Ministers approved the draft Organic Law for the Comprehensive Guarantee of Sexual Freedom, whose objective is “the comprehensive protection of the right to sexual freedom and the eradication of all sexual violence.” Although there is still all the parliamentary processing in the Cortes, with the amendments of the groups before their approval as law, in its article 178, the norm states that “he will be punished with a prison sentence of one to four years, as responsible for sexual assault, the one who performs any act that violates the sexual freedom of another person without their consent” and defines that this exists when “it has been freely manifested through acts that, in attention to the circumstances of the case,clearly express the will of the person.

Screenshot of article 178 of the Draft Organic Law for the Comprehensive Guarantee of Sexual Freedom.

Asked if the assumption raised by the tiktoker Naim Darrechi could be considered a crime of sexual assault, from the Ministry of Equality they affirm that “if he ejaculates inside her without her consent or, by default, lying, it can effectively be considered a sexual assault”. They also state that “any case that threatens sexual freedom in the absence of consent will be a sexual assault and is contemplated in the bill.” It should also be remembered that the project approved by the Council of Ministers eliminates the crime of sexual abuse and equates it to aggression.

The Minister of Equality, Irene Montero, has also published a tweet indicating that “the case will be reported to the Prosecutor’s Office” and that “removing the condom or ejaculating inside without consent is sexual abuse today and the Law #SoloSiesSi will recognize it as assault”.

However, Maria Acale, professor of Criminal Law at the University of Cadiz, points out that “it would be difficult to punish” within Title VIII of Crimes against Sexual Freedom because, she explains, deception does not appear as such within the precept of article 178 paragraph 2 so that “there would not be an attack against sexual freedom.” Point 2 of the aforementioned article considers sexual assaults “acts of sexual content that are carried out using violence, intimidation or abuse of a situation of superiority or vulnerability of the victim”. It also includes those that are carried out on people who “are deprived of sense, whose mental situation is abused and those that are carried out when the victim has her will annulled for any reason.”

According to the professor, according to current legislation, “if there is a sexually transmitted disease, then it would be prosecuted as a crime of injury” , in accordance with article 147 et seq. of the Penal Code: “anyone who, by any means or procedure , will cause an injury to another that undermines his bodily integrity or his physical or mental health, will be punished, as a prisoner of the crime of injuries, with a prison sentence of three months to three years or a fine of six to twelve months, provided that the injury objectively required for their health, in addition to initial medical assistance, medical or surgical treatment.

The tiktoker has already apologized through Instagram

After his controversial statements in the interview with Mostopapi, Darrechi has apologized through a series of stories published on his Instagram account. “I want to apologize, from the bottom of my heart, for my unconsciousness, sometimes I don’t realize the responsibility I really have,” said the tiktoker , assuring that his comment “was out of place” and that “it was not true.” Darrechi has described his statements as “madness” and has wished that “I wish they had not left.” 

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