Why the Spanish law on explicit consent is a failure

It was welcomed as a small revolution. The law of the “complete guarantee of sexual freedom”, dubbed the law of “only a yes is a yes (only yes and yes )”, was one of the key measures in the mandate of Pédros Sanchez, president of the Spanish government since June 2018, at the head of a fragile left-wing coalition. Enacted in October 2022, this law, hailed as a major step forward for women’s rights in Spain, aimed to put explicit consent back at the heart of the definition of sexual offences. Clearly: a sexual relationship in which consent has not been clearly verbalized by each party can now be considered sexual assault, or even rape. An important step forward, therefore, since then before that, it was up to the victim to prove that there was violence or intimidation in order for the rape to be recognized.

To understand the origin of this law, we need to go back to 2016. The “La Manada” story. [La meute en français, NDLR] then it shocked the country. Five Sevillians are accused of raping an 18-year-old girl during the celebrations of San Fermin in Pamplona. Justice is not of the same opinion: two courts consider first of all that it is a question of sexual abuse. These decisions then cause a wave of demonstrations across the country. A mobilization that will not be in vain: the Supreme Court recognized in 2019 that there was indeed a rape and sentenced the perpetrator to 15 years in prison.

A double-sided text

It is therefore on the wave of this event that the law “only a yes is a yes” was born. The idea? Avoid a second “Manada” by tougher penalties for sexual offences.

However, an article in the national newspaper El País, published on February 12, 2023, reveals that the law would have also allowed for reductions in sentences: 46 people who committed sexual violence, i.e. just over 1% of the 3,900 prisoners incarcerated for this type of crime, would thus have benefited from a sentence after the came into force last October.

The newspaper also reveals that among the 1479 sentences reviewed at the request of the lawyers, and in application of the law, 489 sentence reductions were granted.

Where does this malfunction come from? The text of the law merges the notions of sexual abuse and sexual violence (going as far as rape). A change that, as explained by our colleagues from Mediapart, “eliminates the crime of sexual abuse from the penal code. This leads, logically, to a wider range of penalties for the crime of aggression, as this crime now covers a wider range of facts. In the case of assaults with penetration (rape in French law), they therefore range from sentences of 6 to 12 years of imprisonment, to sentences of 4 to 12 years, with the possibility of bringing in more mitigating or aggravating circumstances”. The Spanish site InfoLibretaken from Mediapartdetails the concrete implications of this change in the texts: “an aggressor who was sentenced to the minimum sentence under the pre-reform penal code will be eligible for a reduced sentence, since the minimum sentence [pour une agression] it is now lower, since the entry into force of the new law”.

A law that weakens the left

Described by many as a fiasco, this law crystallizes many tensions within the left-wing coalition, a few months before the general elections to be held in Spain next December. While the government has announced its intention to “correct this law, without fueling controversy”, the left is struggling to agree on the contours that this revision could take. On the one hand, the Socialist Party is asking for more severe penalties, on the other, the Podemos party argues that such a tightening would consist of a step backwards, because it would be equivalent to reintroducing the fact of having to experience intimidation or violence for having recognized rape. A climate of instability that could very well serve as a high road for the right next December…