Spain's government risks growing division over ongoing debates on 'only yes means yes' law

15.03.2023

Sophie Flemming

Women’s Rights Researcher, 

Global Human Rights Defence.

On October 7, 2022, the publicly known as “only yes means yes” law was introduced to the Spanish judicial system. The trigger for this legal reformation was a cruel case where five men raped a young woman at the bull run festival in Pamplona in 2016. The judges decided in court by means of video footage from the offenders that the victim didn’t defend herself which could be seen as proof of consent. The five men – who called themselves “la manada” (“the wolf pack”) – were sentenced with the lesser charge of sexual abuse (Burgen, 2022). This led to years of demonstrations and criticism against the judicial treatment of sexual violence in general. The law dissolves the distinction between sexual abuse and sexual aggression (rape) so that victims no longer have to prove the suffering of violence or physical resistance for the crime to be punished accordingly. Any sexual act without consent is now defined as an assault. (Peter & Hedgecoe, 2022). The law also tightens the rules for street harassment, expands sex education in schools and strengthens compensation for victims of sexual violence. In addition, "intimidating" compliments and the distribution of sex videos are made punishable (Zeit Online, 2022).

But the consequences that followed were unexpected and undesirable. The professor for criminal law at the University of Málaga José Luis Díez Ripollés explains that “by combining assault and abuse into one offense, one has tried to find a middle ground in penalties.” The result is a sentencing range from a fine in the lightest cases to 15 years in prison in the most serious cases. The new sentencing ranges mean a reduction in the minimum penalties for the old aggressions and an increase in the maximum penalties for the old abuses. Sexual assault with penetration, which had a minimum sentence of six years under the old law, is now four years. Díez adds that it was a technical mistake to put abuse and aggression into one pot and this ideological reform did not consider how the penal code works (Llach 2022), which led to the benefit for nearly 800 rapists and sex offenders of the 1,572 detainees who have asked to have their sentences revised (McMurtry, 2023).

Before the law was passed, the Spanish General Council of the Judiciary had warned that this could happen (Keeley, 2022). But the Spanish Equality Minister Irene Montero from Unidas Podemos stated that the law was not poorly designed and that the problem lies with some judges who she accused of not obeying the law and of being biased by sexist stereotypes and patriarchal structures. Ángeles Carmona, member of Spain’s General Council of the Judiciary and president of its Observatory of Gender and Domestic Violence, countered that more than half of Spain’s judges are women and that all are required to undergo special training in gender violence. She thinks that Montero’s criticism of judges risked undermining women’s trust in the justice system (Giles & Wilson, 2022).

Sanchez’s Socialist Party (PSOE) proposed to raise the minimum penalty for sexual aggression to six years in jail if the crime involved violence or intimidation. The left-wing party and coalition partner Unidas Podemos claims this puts the burden of proof back on the victims. Sanchez was still able to enforce the law on March 7 with backing from the conservative People’s Party (Soto 2023) which originally voted against the law with the argument that the bill would jeopardize the principle of the presumption of innocence (Zeit Online 2022). This could widen the division between PSOE and Unidas Podemos who together have passed a series of feminist laws, amongst others on abortion rights, menstrual leave and improved paternity leave (Wilson & Giles, 2023). The newest decision from 07.03.2023 provides that government and parliaments, as well as associations and larger companies should be equally composed of women and men in the future. "If women make up half of society, then they are also entitled to half of political and economic power" said Pedro Sánchez, head of the government of Spain (DPA, 2023).

The question of why sentence reduction was supported by the courts in so many cases and whether this was really done for purely lawful and neutral reasons has nevertheless not yet been conclusively clarified.

Sources and further reading:

Burgen, S. (2022, August 25). Spain passes ‘only yes means yes’ sexual consent law. Retrieved on March 14th, 2023, from https://www.theguardian.com/world/2022/aug/25/spain-only-yes-means-yes-sexual-consent-bill-expected-to-become-law

DPA (2023, March 4). Spanien kündigt Frauenquoten für Politik und Wirtschaft an. Retrieved on March 14th, 2023, from https://www.zeit.de/news/2023-03/04/spanien-kuendigt-frauenquoten-fuer-politik-und-wirtschaft-an

Giles, C. & Wilson, J. (2022, November 17). Spanish minister accuses judges of ‘machismo,’ faces uproar. Retrieved on March 14th, 2023, from https://apnews.com/article/europe-spain-madrid-government-and-politics-5bd0bc8b7c714eb6ddf5194b006aaa43

Llach, L. (2022, November 18). Ley del 'solo sí es sí': ¿Está rebajando la pena de los abusadores sexuales en España? Retrieved on March 14th, 2023, from https://es.euronews.com/my-europe/2022/11/18/ley-del-solo-si-es-si-esta-rebajando-la-pena-de-los-abusadores-sexuales-en-espana

Keeley, G. (2022, November 16). Por qué la nueva ley de violación ‘solo sí es sí’ está reduciendo las penas de cárcel en España. Retrieved on March 14th, 2023, from https://es.euronews.com/2022/11/16/por-que-la-nueva-ley-de-violacion-solo-si-es-si-esta-reduciendo-las-penas-de-carcel-en-esp

McMurtry, A. (2023, March 03). Spain’s new sexual consent law reduces sentences for nearly 800 sex offenders. Retrieved on March 14th, 2023, from https://www.aa.com.tr/en/europe/spain-s-new-sexual-consent-law-reduces-sentences-for-nearly-800-sex-offenders/2835905

Peter, L. & Hedgecoe, G. (2022, November 17). Spain's new sex abuse law sparks jail terms row. Retrieved on March 14th, 2023, from https://www.bbc.com/news/world-europe-63662930

Soto, A. (2023, March 8). Why Spain’s Sexual Consent Law Is Dividing the Left. Retrieved on March 14th, 2023, from https://www.washingtonpost.com/business/2023/03/08/explainer-why-spain-s-sexual-consent-law-is-dividing-podemos-and-the-socialists/7024ad06-bdd3-11ed-9350-7c5fccd598ad_story.html

Wilson, J. & C. Giles. (2023, March 7). Spain gov’t split over sexual consent law before Women’s Day.

Retrieved on March 14th, 2023, from https://apnews.com/article/spain-womens-rights-sexual-violence-quotas-rape-e376589c6b5067f0e192abb9050066c2

Zeit Online (2022, August 26). Spanien verschärft Sexualstrafrecht. Retrieved on March 14th, 2023, from https://www.zeit.de/politik/ausland/2022-08/spanien-vergewaltigung-gesetz-staerkung-regierung