UN expert voices concerns over the unfortunate impact of Spain’s new sexual consent law
Women’s Rights Researcher,
Global Human Rights Defence.
Reem Al Salem, the UN Special Rapporteur on violence against women and girls, voiced concerns about the adoption of a new law on sexual consent in Spain which considerably reduced the length of sentences given to perpetrators of sexual violence against women (UN OHCHR Press Release, 2023). The law in question is the Organic Law for Comprehensive Guarantees of Sexual Freedom, better known as the Sexual Consent Law, or the “only yes means yes” law, which came into effect last October.
In April 2023, Spain’s prime minister Pedro Sánchez had apologised to victims of sexual violence for this loophole in the “only yes means yes” law which caused the undesired consequence of sentences being reduced. The law had essentially improved the criminal code by establishing the presence of sexual consent as key, rather than putting the main importance on whether force is used by the aggressor when determining sexual assault cases, to allow for the definition of all non-consensual sex as rape, which carries tougher penalties (Wilson & Giles, 2023). On top of making consent the deciding factor, the law enshrined that passivity and silence can no longer be interpreted as consent, which must be “freely manifested through actions that … clearly express the person’s wishes” (Henley, 2023).
However, the law also altered the minimum and maximum jail sentences which in turn lead to some offenders having their sentences reduced on appeal, causing the unintended effect, as sentences in Spain can be modified retroactively if a change in the penal code benefits the perpetrator (Henley, 2023). According to the General Council of the Judiciary, the adoption of the law resulted in reduced sentences for 943 out of 4,000 perpetrators of sexual violence as of April 12, 2023 (UN OHCHR Press Release, 2023).
According to UN expert Al Salem, “The negative consequences have unfortunately eclipsed many positive aspects of the sexual consent law…” (UN OHCHR Press Release, 2023). Positive aspects of the law include more comprehensive preventive measures, better recognition of victim’s rights and their access to reparation, and emphasis on the State’s obligation to provide legal and medical assistance, as well as making consent the key factor as mentioned previously. However, the expert highlighted that establishing consent as the deciding factor may cause the burden of proof to fall on the victims instead of the perpetrators, as in cases of trafficking women for sexual purposes and exploitation in prostitution and pornography. Al Salem expressed further concerns that the law had not been accompanied by resources to ensure its proper and intended implementation, and that the unintended consequence of the law could have been avoided if more attention had been paid to the voices of different stakeholders who had warned against this obstruction.
Two of these stakeholders, the Socialist Party and the United We Can Movement who are political partners in Spain’s parliament, are in disagreement over the cause of the unfortunate consequences of the law (Wilson & Giles, 2023). According to the Socialists, the law is flawed and in need of alterations that ensure higher prison sentences. Equality Minister Irene Montero of the United We Can movement on the other hand, supports the law as it is and states that the problem is rooted in the habitual sexism of some judges who she further accused of not obeying the law. According to Montero, judges need more training to overcome the gender bias that’s causing them to reduce the prison sentences; however, judges state that they have no alternative but to apply the change in the law in favor of the defendants regardless of its unintended effects (Henley, 2023).
In light of the disagreements in parliament and the extensive implications of the law for sexual violence victims, the Special Rapporteur stated that the consultations on the draft law should have been allowed more time instead of “rushing it through”.
“For a country with a high rate of femicide, reducing the sentences of those found guilty of perpetrating sexual violence – against women and children – sends the wrong message about the State’s priorities when it comes to ending violence against women and children and fighting impunity for such crimes,” Al Salem concluded (UN OHCHR Press Release, 2023).
Sources and further reading:
Dönmez, B. B. (June 6, 2023). UN rapporteur calls for more protection for sexual violence victims in Spain over consent law. Anadolu Agency. Retrieved on June 8, 2023 from https://www.aa.com.tr/en/europe/un-rapporteur-calls-for-more-protection-for-sexual-violence-victims-in-spain-over-consent-law/2915817#
Henley, J. (April 16, 2023). Spanish PM apologizes for loophole in new sexual consent law. The Guardian. Retrieved on June 8, 2023 from https://www.theguardian.com/world/2023/apr/16/spanish-pm-apologises-loophole-sexual-consent-law
The Limited Times (June 6, 2023). The UN special rapporteur reproaches Spain for the errors of ‘only yes is yes’ and calls for more protection for victims of sexual violence. Retrieved on June 8, 2023 from https://newsrnd.com/life/2023-06-06-the-un-special-rapporteur-reproaches-spain-for-the-errors-of--only-yes-is-yes--and-calls-for-more-protection-for-victims-of-sexual-violence.HJ4-p02U2.html
UN Human Rights Office (OHCHR) Press Release (June 6, 2023). Spain: UN expert calls for stronger protection for victims of sexual violence. Retrieved on June 8, 2023 from https://www.ohchr.org/en/press-releases/2023/06/spain-un-expert-calls-stronger-protection-victims-sexual-violence
Wilson, J. & Giles C. (March 8, 2023). Spain gov’t split over sexual consent law before Women’s Day. The Associated Press. Retrieved on June 8, 2023 from https://apnews.com/article/spain-womens-rights-sexual-violence-quotas-rape-e376589c6b5067f0e192abb9050066c2