The controversy surrounding the review of sentences for sexual crimes in application of the Law on Sexual Freedom has opened the box of thunder in the Government. President Pedro Sánchez and the PSOE ministers are determined to change some articles to toughen the penalties, while the Ministry of Equality warns that consent - the only yes is yes - must prevail as the central nucleus of the legislation. The negotiation continues.
The sentence of the Provincial Court of Navarra condemned in 2018 for abuse and not for sexual assault the five members of La Manada who raped a young woman during the Sanfermines. The sentence indicated that the victim "entered the premises suddenly, suddenly, without violence" and the judges accepted this to avoid conviction for rape. This sentence, with a massive response from women in the streets, was corrected by the Supreme Court. Upon her arrival at the Ministry of Equality, Irene Montero promised to draft a law on sexual freedom, which under the premise of "only yes is yes" would put consent at the center of the norm.
"It will only be understood that there is consent when it has been manifested through acts that, in view of the circumstances of the case, clearly express the will of the person."
The concept of consent is rooted in jurisprudence regarding the need to eradicate violence against women, and in this case sexual violence. It must be based on the premise that, as happened with gender violence, this concept is slow to introduce due to the patriarchal bias with which women are still judged. The Istanbul Convention, mandatory for EU countries, states that "consent must be given voluntarily as a manifestation of the free will of the person considered in the context of the surrounding conditions." Women as sovereigns of their sexual relations.
collaterally. The “only yes is yes” law merges the crimes of abuse and assault. The elimination of the crime of abuse emanates from the controversial sentence of the Pack, that is, from its suppression and unification with the aggression to avoid repeating this type of sentences. The norm therefore considers that any sexual act without consent is an assault, and the range of penalties was changed. Herein lies the current problem that has caused the release of some convicts based on the application of the most favorable norm to the prisoner.
By merging the two crimes, some minimum sentences were reduced, establishing, for example, a minimum of 4 years (before they were 6) for a case of rape. And 6 when the victim is a minor (before there were 8). In this sense, the reform with which the PSOE works proposes that in the event of violence or intimidation the penalties increase. In article 178, which establishes prison from one to four years -a crime without penetration-, Justice wants to extend it up to five years if there has been violence or intimidation. In article 179, and as indicated, the minimum sentence would rise from 4 to 6 years. In article 180, if the acts are committed by two or more people, with extreme violence, in a vexatious manner, or against a vulnerable person (...) weapons are used or their will is annulled, the sentence will reach up to 15 years. In sexual assaults on minors under 16 years of age, as has been pointed out, Justice proposes raising both the minimum and maximum penalties.
From the Ministry of Equality it is warned that consent is in danger since it returns to the "ordeal of evidence for women". For Equality, even if the concept of consent is not repealed in the law, if the concept of violence and intimidation is reintroduced, the reversal is evident. The PSOE says that its reform guarantees the maintenance of consent as the axis of the law, and that violence and intimidation only act as aggravating factors.
If the reform is approved, the changes will operate based on the crimes committed since its entry into force.
