The Law of Comprehensive Guarantee of Sexual Freedom, better known as the 'law of only yes is yes', which eliminates the distinction between sexual assault and abuse and situation the focus of intimate relationships on consent, appears today published in the Bulletin Official of the State and will not enter into force until next October 7. As officialized by the BOE, Title IV of the law on the right to specialized comprehensive care and Title VI that addressed access to and obtaining justice will be exempt from entering into force for six months.
The law will be in force after more than a year of legislative procedures. If the BOE explains the distinction between assault and sexual abuse, considering sexual assault "all those behaviors that violate sexual freedom without the consent of the other person." And it also shows the effective reduction of penalties for sexual assault, whose maximum limit will be eight years. As criminal lawyers have explained on several occasions, and so does the jurist José María de Pablo on Twitter, on October 7, they will be able to review the penalties applied. De Pablo exemplifies by contrasting the text in force until now (Criminal Code in hand) with the law of the only yes is yes published in the BOE and underlines that:
-The maximum penalty for the basic type of sexual assault falls from 5 to 4 years in prison.
– The minimum penalty for penetrative sexual assault drops from 6 to 4 years in prison.
– The penalty for aggravated sexual assault, which was 5 to 10 years, is now 2 to 8 years. This reduction -de Pablo argues- is very important, because it will allow agreements of conformity in these aggressions, for only 2 years in prison with suspension, preventing the prisoner from entering prison.
-The penalty for sexual assault with penetration and aggravating circumstances, lowers its minimum from 12 to 7 years.
📝 Published today in the BOE LO 10/2022, comprehensive guarantee of sexual freedom ("Only Yes is Yes" Law).https://t.co/V00ja8qtj4
– José María de Pablo 🇺🇦 (@chemadepablo) September 7, 2022
In addition, this jurist remarks that the norm "already has greater discretion for judges (the new margins are enormous) and less proportionality: crimes of different severity are punished in the same way."
In the new range of sentences specified in the law, the limit is 8 years. “In brief headlines scandalized by future low sentences for serious sexual crimes, and everyone will attack the judges who will have limited themselves to applying the reductions that this law brings,” De Pablo argues today.
The report of the Fiscal Council in January 2021 on account of the so-called 'law of only yes is yes' already drew attention to this modification of the criminal classification. This, as well as other entities and legal experts, stressed that the 1995 Penal Code was more punitive than the new norm.
Of these voices, the most forceful was that of the women jurists of Themis, who expressed their doubts about the effectiveness of this sentence to lower the most serious attacks and expressed their rejection of the possibility that this could lead to a subsequent review of the to close.
De Pablo himself warned that when the law published in the BOE comes into force, in a month - on October 7 - the parade of lawyers will begin to request the review of the convictions of their clients, which does not mean, he admitted De Pablo, that in cases like La Manada de Sanfermín it will be possible, because the convictions were already "close to their legal minimum". Last week, the lawyer for the young people sentenced in June 2019 by the Supreme Court argued that with the law promoted by the Ministry of Equality he would study the request to reduce the correction to his clients.
"They want to scare women"
The Government delegate against Gender Violence, Vicky Rossell, cried out against "the propaganda that seeks to discredit" an essential law and that places the focus on consent to intimate relationships. "They want to scare women," she reproved.
Feminist associations adhere to this line, such as the Women's Foundation, whose president emphasized to ABC that this controversy dates back to a year ago, when the Themis jurists objected to this new penal system. Now it is a somewhat opportunistic debate. According to Marisa Sotelo, “it is part of the colise of criticisms of the law when the important thing is not to lock them up for life, or the length of the sentences, but rather that it changes the re-victimization of women and ends the impunity that some crimes have. Judicial practice tended to place the victim in the spotlight and not the aggressor, who will now be asked what she did to obtain consent. The transcendental is the change of judicial paradigm”. After more than a year of processing the law, the current commotion is due – Sotelo stresses – to “simplistic analyses” because with the previous legal corpus “very high penalties were imposed for sexual abuse and we were scandalized as a society”, as it happened, He says, with the footballers of La Arandina.
Like the Women's Foundation, the consulted entities do summon to verify what will be the practical application of the norm by the judges.
Chemical submission or punctures
On the other hand, the rule expressly introduces as a form of commission of sexual assault the so-called chemical submission or through the use of substances and psychotropic drugs that annul the will of the victim.
Likewise, the gender-specific aggravating qualifying circumstance is introduced in these crimes and other precepts of the Criminal Code related to the responsibility of legal persons, the suspension of the execution of sentences in crimes of violence against women, social damage and harassment offences, including street harassment.
From the entry into force of the norm, acts of a sexual nature without consent or that condition the free development of sexual life in any public or private sphere, which includes sexual assault, sexual harassment and exploitation of the prostitution of others. The organic law also aims to respond especially to sexual violence committed in the digital sphere, which includes the dissemination of acts of sexual violence through technological means, pornography without consent and sexual extortion.
Likewise, female genital mutilation, forced marriage, harassment with sexual connotations and trafficking with sexual exploitation fines are considered sexual violence. Lastly, the homicide of women linked to sexual violence, or sexual femicide, is included.
The law promoted by the Ministry of Equality was definitively approved in the Congress of Deputies on August 25 with the only votes against being PP and Vox and CUP abstaining. Its processing was delayed a month after a Junts amendment was accepted in the Senate that changed a letter, to include forced (and not forced) abortion and sterilization as the "most hidden sexual violence."
