On December 8, 2021, five women made public complaints of sexual abuse against Fernando Becquer, a troubadour on the Cuban cultural scene. The complaints were published in the non-state magazine El Estornudo. At least one of the complainants has stated that she first contacted the country’s official media, which did not respond.
The event triggered a broad and highly audible public and political debate on various related issues, and for various related reasons. It was not the first time that a man from the country’s artistic field had been publicly denounced for sexual and gender-based violence. The discussion already had an important path in Cuban society, they had permeated the political discourse of institutions and the government, and had generated social organization in civil society.
The first five public denunciations were followed by more. Today there are about thirty women who have reported acts of violence by the same aggressor. Seven of them filed criminal complaints. The trial was held on October 18.
Official institutions have shared on social networks the ruling of the court that heard the case in the first instance: guilty of the crime of lascivious abuse and sentenced to five years in prison, subsidized for limitation of liberty.
The knowledge of the sentence brought to the fore little discussed matters. One, fundamental, is what type of punishment is expected for these crimes, what does it have to do with the reparation of the victims and how to think about the punitive policy in Cuba. Another is where are the public complaints in that process.
The current Criminal Code, from 1987, contemplates the sanction of deprivation of liberty from six months to two years against that person who, without the intention of carnal access (which has meant, in the practice of law, mainly penetration), lewdly abuses other. For the aggravated form of this crime, the law regulates a custodial sentence of two to five years, provided that the following conditions are met: a) if the accused has a criminal record for the same crime; b) if, as a result of the events, serious injuries or illnesses are caused; c) if the accused carried a sexually transmitted disease; d) if the crime is committed against a person under twelve years of age (300.1 to 4).
The crossing of the sanction with the norm allows to affirm that the defendant was found guilty of sexually abusing and without penetration of the women who denounced him criminally. That 5 years have been sanctioned (the maximum penalty for that crime) may have responded to two possibilities. One, that at least one of the aggravating conditions mentioned above has been demonstrated. Another, that a joint sanction has been defined, resulting from the total number of sanctions issued for each crime committed against each of the complainants.
In addition to the condition of guilt, it is noteworthy that in the sentence, prison internment was replaced by a subsidiary sanction: the limitation of freedom.
The limitation of freedom is a form of substitute compliance with a sentence. It is applicable when the court considers that, “due to the nature of the crime and its circumstances and the individual characteristics of the sanctioned person, there are well-founded reasons to estimate that the purpose of the sanction can be achieved without internment” (art. 34.1). That is, ruling on a subsidiary measure is at the discretion of the court and its interpretation of the nature of the crime, its circumstances, and the individual characteristics of the sanctioned person.
This measure implies that the sentenced person cannot change residence without authorization from the court, is not entitled to promotions or salary increases, is obliged to appear in court as many times as required by this instance, and is obliged to demonstrate “an honest attitude towards work, strict compliance with the law and respect for the rules of socialist coexistence.” (art. 34.3).
For the case in question, is the limitation of freedom an adequate sanction and in correspondence to the facts? Various data question this ruling.
First, during the ten months of investigation, Bécquer harassed and revictimized his accusers (those who used criminal proceedings and those who made public complaints) and those who accompanied or supported them. Secondly, the now sentenced never acknowledged the facts, as evidenced in the public messages and statements made by him to the press.
Likewise, and although it was never known with certainty if a precautionary measure was applied to him, Bécquer disobeyed the “indications” given by the Ministry of Culture and the entity that links him to work, not to appear on stages or attend cultural spaces where had denounced that he usually initiated the crime under investigation. Even one of the circumstances that characterized the crimes is that the troubadour committed the acts in his house, that is, that the limitation of freedom subsidiary keeps intact the scene where the events took place, promoting the possibility of repeating them. Finally, the facts speak of a solid systematic approach to the crime: they took place over decades.
For all that, neither the circumstances of the crime nor the characteristics of the sanctioned person seem to favor the decision of the court to sanction the limitation of freedom as a substitute penalty. Rather, it is inadmissible because there is no reason to think that the culprit will not repeat the facts. The conclusion then is this: non-custodial sanctions require conditions to be effective. In this case, there is no guarantee for it.
From the judicial point of view, the complainants could challenge the ruling through an appeal before the Provincial Court of Havana. This path is available but it is not legally mandatory nor should it be socially. The complainants, ultimately, are the ones who must decide whether it is restorative or not for them to move forward in that direction. Also other possible victims, who have not participated as complainants in the current criminal process, can file new complaints and open a new path.
The possibilities of punishing cases of sexual violence (within which lewd abuse fits) can also be examined from another angle, which is not recognized by the current Criminal Code or the next one that will come into force this year: the need not only to establish penalties of deprivation of liberty but to offer reparation alternatives for the victims and for society; for example, the obligation for the sanctioned person to go through awareness-raising processes on sexist violence during the serving of the sentence, among other actions complementary to the main sanction. That is why the subsidiary sanction of limitation of freedom is also questionable: it is not accompanied by reparation measures sanctioned by the same court, because they do not exist.
Cuba and punishment
When the sentence was known, an important part of the public opinion described it as bland, insufficient, ridiculous, like a pass of the hand to the aggressor, a grotesque mockery, a face lift or, at least, as insufficient. More severity has been demanded and the sentence has been compared with others, greater, that people judged by others have received. The claim is that the full weight of a more rigorous law falls on Bécquer, or at least that it be penalized as much as other crimes.
The problems with the application of the available standard were already mentioned above. We stop at another matter related to the following fact: legal analyzes and investigations have proven that the most severe penalties do not reduce the frequency or seriousness of the cases. In other words, there is no causal association between greater severity of sentences and fewer crimes; They do not have dissuasive or exemplary effects for aggressors or potential aggressors, at least in cases of gender-based violence.
If so, why is the punitive discourse deployed so much?
In Cuba — and many other places — the punitive logic organizes an important part of the links between people, between institutions and citizens, and between the government and those who disagree. Proof of this are: a more severe and maximalist Penal Code that will come into force soon; decrees and decree laws that sanction publishing content on social networks in an imprecise and discretionary framework; television coverage of lawsuits or operations against offenders of the rules that regulate the non-state sector of the economy or that are linked to the informal market, and much more.
So, the social imagination that asks for more years of sentence and more severe forms of compliance is related to the political logic that also produces them. Having said that, it is necessary, immediately, to add three additional elements.
First, survivors of gender-based violence often find redress through criminal law. The criminal route matters for the way in which, until now, societies have punished behaviors classified as crimes. Producing other forms of justice is a path to travel and in many territories it has not even started. Recognizing the limits that this route has cannot make invisible how much reparation it can have for the really existing survivors.
Second, focusing the analysis on the comparison between this sentence and others (mainly associated with political crimes, although they are not the only ones that are overcriminalized in the country) blurs the priority of the complainants and their central place in social discussion.
Third, making the case visible only or mainly in the punitive coordinates ignores very complex knots related to the problem of sexist violence. When the focus is exclusively on the criminal sanction, the responsibility for “correcting” the problem is transferred to a single actor (the judicial and prison systems). However, gender violence is plotted by many threads and is reproduced in families, the media, public and private institutions, schools, etc. This does not mean that criminal proceedings cannot be reparative for the victims, but rather that as a society it is necessary to broaden the focus and gaze to seek solutions and not only tackle each individual case.
In addition, the punitive illusion blocks the importance of considering reparation measures that could be demanded even by the survivors of the aggression (institutional pronouncements, public apologies, guarantees of non-repetition, psychological support, inclusion of the aggressor in training processes on gender, etc.) or recommend specialists on the subject. All of this can and should be part of legal instruments and regulations, such as the Penal Code itself and others.
Finally, not addressing this problem and its debates fully castrates the urgent need for legal pedagogies that challenge senses of justice other than prison confinement, or at least complement them with critical discussions on the resolution of social problems and conflicts.
A Comprehensive Law against Gender Violence would go in that direction. Such a standard could, and should, produce broad and fair understandings of the problem, including available avenues of redress for survivors. And it is that a Comprehensive Law is not a criminal law, it is not exclusive of the transversalization of the matter to other regulations, and allows to build more agile and coherent institutional and social transformations. In Cuba, this legislation has been demanded a lot, without success so far.
Cuban society seems to have made little progress in recognizing alternative ways of reparation and understanding alternative ways of filing complaints, and so has the government. After the Bécquer case was made public, the institutional pronouncements have referred exclusively to the criminal complaints made. They stimulated them, accompanied at least part of the complainants and followed up the process, even with limits.
However, we must not forget that it all started with public complaints. In fact, none of the first complainants undertook legal proceedings, for different reasons (because it was not possible for them because they reside outside the country, because the events occurred a long time ago, because they did not want to, or for any other reason). However, this conversation that Cuba is giving itself about sexual abuse and justice would not be possible without them. Nor without the first publication with their voices.
It is very important to encourage public complaints, make them visible and place them in the foreground, along with those that have gone through a criminal process. Public complaints are also part of the reparation of the people who have been violated, and they are a way through which, as has happened in this case, the complainants relate to each other, they remember each other, they repair each other in the process, they accompany each other, they show solidarity and teach just life lessons.
The denunciations of Fernando Bécquer, in his different registers and voices, and everything that has come after, leaves a mark on Cuba. It is not the first complaint against an aggressor on the cultural scene, but it is the first to receive a guilty verdict. It is not the first case to make headlines, but it is the first of its kind to reach the state press and propel institutional pronouncements. It is not, of course, the first sentence for lascivious abuse in the country, but it has transpired that it is a collective complaint, both legally and socially. It is not the first case that takes place after the discussion on gender violence is more present in the country, but it is the first that occupies public squares when some regulations recognize this crime. It is also a process that allows us to have these conversations, and many others that are already open and will not be closed.
The twelve hours that the trial of Fernando Bécquer lasted were followed, in suspense, by all of them. For those who uncovered their history of pain and violence in court, and for those who remained outside that same place or anywhere in the world and the country, going through this process that we will only be able to measure better as the days go by. T