Spain's two largest parties, government senior partner the PSOE and the opposition PP, have joined together this Thursday to "fix up" the Sexual Freedom Law, better known as the law of 'Only yes means yes', passed just last year. Specifically, the Socialists allied, as expected, with the conservative opposition - along with Together for Catalonia (Junts), the Basque Nationalists and Ciudadanos - to approve the amendment bill modifying the legislation that, when passed, was the flagship of the Unidas Podemos-led equality ministry, and whose amendment is now against the criteria of the alternative left government partners who conceived the original text. The law drafted by the ministry under Irene Montero was a response to the social uproar prompted by the lenience of the first sexual abuse sentences handed down in the Pamplona gang rape carried out by the group of men who called themselves La Manada ("wolf pack"); but the changes that have now been instigated by the PSOE - and supported by the right wing PP - are the product of the alarm that the "unwanted effects" of the legislation have produced, in the form of hundreds of sentence reductions for offenders convicted of sexual assault and even release from prison of many who had been jailed for serious sex crimes. This occurred because, after the 'Only yes means yes' law came into effect, judges used the principle of applying the law most favourable to the prisoner. According to data from the Spanish judiciary, 978 sentence reductions and 104 releases from jail have been decreed.
With all the cards now on the table, it is worth making a diagnosis of the evolution that the text has undergone, what changes were introduced, what the end result looks like and what debates it has sparked among the parliamentary groups.
The Spanish Penal Code prior to 'Only yes means yes'
Under the law applying to sex offences prior to 'Only yes means yes', a difference was recognized between the more serious crime of sexual assault and the less-serious sexual abuse. The element that distinguished one from the other was whether the attacker overrode the will of the victim through violence or intimidation, beyond the question of whether there was consent or not. In other words, the key aspect was that victims had to prove that force had been used to sexually assault them and the fact that a victime had expressly said 'no' had no relevance when determining the crime.
The paradigm shift of 'Only yes means yes'
'Only yes means yes', which became a chant used by the feminist movement following the first sentence against La Manada pushed the coalition government to change the Penal Code. The new law approved by the PSOE and Podemos unified all cases under the same crime, that of sexual assault, eliminating the distinction with respect to sexual abuse and putting consent at the centre. In other words, any act that attacks a person's sexual freedom would be considered sexual assault if there was no consent. The law thus unified misdemeanours with more serious crimes and established new, broader sentencing ranges that, in practice, caused some judges to lower some sentences against already-convicted offenders, on the basis that the law most favourable versin of the law should be applied to the prisoner. The objective in this law was for the Spanish justice system to focus on consent, so that trials would not become focused on the issue of having to ascertain the extent to which victims had resisted, to demonstrate the violence used.
The conflict between the PSOE and Podemos
The interpretation given to the article by some judges gave rise to social alarm over the "unwanted effects" the new law was giving rise to. For this reason, the PSOE and Unidas Podemos agreed that changes had to be introduced to the law and, despite an intensive negotiation process, the Socialists ended up registering an amendment bill unilaterally without the participation of their more radical left-wing partners. It maintains the definition of consent and the unification of the crimes in the original version, but reintroduces violence and intimidation as factors that establish higher penalties. The method used is to introduce a subtype of the crimes in the Penal Code. In other words, aggravating factors have been introduced in all types of sexual crime when the aggressor uses violence and intimidation to obtain the consent of the victim. Under the Socialists' amendment bill, the top end of the range of penalties is increased in different articles of the Penal Code when these two factors are demonstrated in the evidence.
Thus, Podemos interprets that the law's essence has been lost and victims will have to go through "an evidential hell" again to prove that they have been sexually assaulted and so, de facto, represents a return to the previous judicial schema. A key point, then, is where violence and intimidation are placed in the updated version of the text in order for the consent principle to be intact at the heart of the law. Podemos's own proposal was for these two elements to be placed in the reform - which they were willing to accept - as aggravating factors, but not that they should constitute separate crimes in themselves. On the contrary, the PSOE deputies believe that such a change could lead to further "disproportionate" sentences.
The PP's "technical corrections"
Although the sentences ranges remain the same, the PP have successfully introduced further minor changes to the reformed law, through "technical amendments", which involve recovering two classifications of crime that had been removed by mistake. Among the changes accepted, is the classification as a crime of distributing content that incites children aged under 16 to commit sexual assaults. Another amendment restores the classification of the crime of degrading treatment, which was mistakenly deleted. Other minor modifications related to the wording have also been agreed upon.
The effects of the reform
In any case, the amended law, now passed, will not apply retroactively. In other words, the sentence reductions already handed down cannot be revised upwards again. Yes, it will have consequences on sentences that are reviewed as soon as the modification enters into force. Only through the application of the new text - and the interpretation made by the judges - will it in the end be established whether consent is still at the heart of the law or whether violence and intimidation - and the requirement for victims to prove these elements - will again be decisive from now on in sexual assault cases.