Government in difficulty and offenders on the loose: the nightmare in Spain for the “only yes is yes” law

In Spain, the modification of the law on sexual offenses, which came into force in October of this year, has become a nightmare: as if it had an effect contrary to the desired one -which was supposed to give greater protection to the victims-, it is causing, in some cases, penalty reductions jailing those who had already been convicted of sexual abuse.

It is the organic law of Complete guarantee of sexual freedom which the Spanish know as “the law of only yes is yes”.

Celebrated by the Minister of Equality, Irene Montero, as one of her achievements within the PSOE-Podemos coalition government which integrates from Unidas Podemos, the novelty of the law establishes that Consent in any sexual contact it is decisive when prosecuting such crimes.

Already the new law does not distinguish between abuse and sexual violence and broadens the punishable behaviors by considering that aggression does not need violence or intimidation to be evaluated as such.

In other words, from now on, by law, any sexual act without consent is considered a sexual assault.

The problem

However, when awarding sentences, the new law changed the range of some minimum penalties: the crime of assault, for example, corresponds to a sentence of four years’ imprisonment, while in the previous penal code it was a crime punishable by six years’ imprisonment.

The Supreme Court must establish the jurisprudence on the interpretation of the law and it is also possible that an appeal for amparo reaches the Constitutional Court.

The application of the “law of only yes is yes” has already caused, according to the Spanish press, that the courts lowering at least twelve sentences for sex offenders and the other five they regained their freedom.

The convicted are based on the fact that the Spanish penal code provides that “they will have retroactive effect those penal laws that favor the defendant, even if when they entered into force the final sentence had passed and the subject was serving his sentence”.

“It gives me a lot of helplessness. And her anxiety ”, confesses to Spanish public television Lucía, who as a child she was abused by her uncle. Justice sentenced him to 11 years in prison but He has already asked for his sentence to be reviewed.

“Patch the Law”

Given the persistent trickle of requests for revision of the sentence that the various Spanish courts are receiving, the Spanish State Attorney General’s Office study “patch” the law of only if yes, at least until the Supreme Court rules.

The concept that could be applied is to suspend the review of the sentence if the sentence imposed according to the already repealed law can also be established according to the new law.

This could be clarified by taking into account a transitional provision of the Spanish penal code: the one which provides that “in prison sentences, it will not be considered more favorable when the duration of the previous sentence inflicted on the fact with its circumstances according to the new code is also taxable”.

The controversy adds a headache for the prime minister of coalition, Pedro Sánchez, who had described the modification of the law as “a feminist conquest to “strengthen women’s safety”, something Spanish women don’t hear these days.

For Minister Montero, “machismo can lead to judges who misapply a law”.

“This machismo undermines the integrity and impartiality of judicial systems and that work is done with compulsory training,” added the Minister of Equality.

A problem of interpretation

“In the case of the law for the integral protection of sexual freedom, what has occurred is a problem of legal interpretation, that is, by the judges who have to interpret that law”, he said clarion former judge Baltasar Garzón.

“This law focuses on consent. The reform includes what was previously called sexual abuse in the conduct of sexual assault. There are several behaviors for which an attempt has been made to establish a uniformity of sentences -explained Garzón-. That uniformity of punishments, in a broad or global sense, sets a lower limit at the bottom of the sentence and a practically identical limit in the other pipelines. But including so-called sexual abuse, there is an increase in penalties for these behaviors”.

To decide whether an already final sentence can be reviewed and then modified, “what has to review is the same court that issued that sentence,” said Garzón.

“We need to see the description of the facts ascertained and the assessment that was also made during the trial. The court that saw the oral trial, that saw the evidence, that saw the witnesses, that saw the defendants, you have to reevaluate it now when it comes to measuring that phrase,” he stressed.

“It is a problem of interpretation but we must always think about the protection of the victim”, underlined the former judge.

The case of the pack

The organic law of the Integral Guarantee of Sexual Freedom was born as a claim in controversial cases such as that of La Manada, the gang rape suffered by a 21-year-old girl during the Sanfermines in 2016, which initially provided for a lesser sentence for rape but was later obtained that the crime be recognized as assault and the sentence of the accused be increased.

When in August of this year, Podemos managed to get Congress to approve the law – against which PP and Vox voted -, Minister Montero exulted: “No woman will have to prove that there was violence or intimidation to be considered as such, as a sexual assault,” he said later.

“We recognize all sexual violence as violence against women, as sexist violence and therefore, the State provides a comprehensive treatment and reparation itinerary for all women victims of sexual violence. It is the feminist cry of ‘only yes is yes’from ‘Sister, I believe you’ which becomes law in our country,” he added.

In the 2019 government coalition agreement, the PSOE and Unidas Podemos pledged: “We will reform criminal law to ensure that the victim’s consent is fundamental in sexual offences, so that if a woman does not say yes, all the rest not. That is, only yes is yes,” they postulated. Without counting, certainly, the blows that the modification of the law is unloading on Spanish society.

Madrid. Corresponding