‘Only yes means yes’: Spain tightens sexual consent law

Spain on Thursday toughened its rape laws, pushing through legislation requiring explicit consent for sex in a move driven by its left-wing government following a notorious gang rape that outraged the country.

(FILES) In this file photo taken on April 26, 2018 a person holds up a placard reading "Yes, it is rape" during a demonstration in Madrid to protest after five men accused of gang raping a woman at Pamplona's bull-running festival, were sentenced to nine years in jail for "sexual abuse," avoiding the more serious charge of rape. - Spain on August 25, 2022 toughened its rape laws, pushing through legislation requiring explicit consent for sex in a move driven by its left-wing government following a notorious gang rape that outraged the country. Known as the "Only yes means yes" law, the bill was given the green light by parliament with 205 votes in favour and 141 against after passing its first reading by lawmakers in May. It involves a reform of Spain's criminal code that now defines rape as sex without clear consent. (Photo by GABRIEL BOUYS / AFP)

Known as the “Only yes means yes” law, the bill was given the green light by parliament with 205 votes in favour and 141 against after passing its first reading by lawmakers in May.

It involves a reform of Spain’s criminal code that now defines rape as sex without clear consent.

“Consent is recognised only when a person has freely demonstrated it through actions which, in the context of the circumstances of the case, clearly express the person’s will,” it says.

“At last our country legally recognises that consent is what needs to be at the centre of all our relationships,” said Equality Minister Irene Montero.

“No woman will ever have to prove that violence or intimidation was involved in order for it to be considered a sexual assault.”

Until now, rape victims needed to prove that they had been subjected to violence or intimidation.

The issue was at the heart of the notorious 2016 gang rape of an 18-year-old woman by five men at the bull-running festival in Pamplona, northern Spain.

The men — who called themselves the “wolf pack” — were initially convicted of “sexual abuse” and not rape.

Two of the men filmed the assault, during which the woman is shown silent and passive — a fact the judges interpreted as consent.

Defined by the absence of violence or intimidation, such an offence carried lighter penalties — but no longer exists in the reformed criminal code.

Huge protests

That initial verdict led to huge nationwide protests demanding reform.

In 2019, the Supreme Court overturned the verdict, convicting all five of rape and increasing their sentences from nine years to 15 years each.

Socialist Prime Minister Pedro Sánchez — a self-described feminist — vowed to introduce a law on consent aimed at removing ambiguity in rape cases when he took office in June 2018.

The new law also tightens the rules on street harassment, expands emotional and sexual education in schools and strengthens protection and compensation for victims of sexual violence.

Marisa Soleto, head of Fundacion Mujeres said it was the culmination of a “long-awaited” demand of the feminist movement. “

“We’re hoping it will bring about a change in behaviour” both within Spain and beyond, she told AFP.

The government says the legislation was based on the recommendations of the 2011 Istanbul Convention on preventing and combating violence against women.

Montero said Spain was also inspired by pioneering legislation which came into force in Sweden in 2018 which considers as rape any sex act without explicit consent.

Such laws remain the exception in Europe.

According to an Amnesty International study, only 12 of 31 European countries it analysed have changed their legal definition of rape to sex without clear consent.

They include Belgium, Croatia, Denmark and Sweden.

The remaining nations defining it by other measures such as whether violence or the threat of violence was used — as was the case in Spain until now.

In June French senator Esther Benbassa proposed a law inspired on Spain’s “Only yes is yes bill” that would require explicit consent for sex acts.

Spain is considered a pioneer in the fight against violence against women after in 2004 approving Europe’s first law that specifically cracked down on domestic violence.

That law made the victim’s gender an aggravating factor in cases of assault.

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Why Spain’s right is vehemently opposed to changes to sedition law

Spain's right-wing opposition is infuriated over government plans to abolish sedition, the charge used against Catalan separatist leaders, decrying the move as a gift to pro-independence parties in exchange for parliamentary support.

Why Spain's right is vehemently opposed to changes to sedition law

Parliament on Thursday approved a bill to reform the criminal code to drop what Spain’s left-wing coalition government sees as an antiquated offence, replacing it with one better aligned with modern European norms.

And the change should be in place before the year’s end, Spanish media reports say.

In response, the far-right Vox party has called a protest in Madrid on Sunday, while the right-wing opposition Popular Party (PP) has convened rallies across the country to express its opposition.

Right-wing parties say eliminating sedition — the charge used to convict and jail nine Catalan separatists over their involvement with a failed 2017 independence bid — will pave the way for another attempt to separate from Spain.

Initially condemned to between nine and 13 years behind bars, the separatists were pardoned last year by the leftist government, drawing fury from the Spanish right.

“Great for those in Catalonia who want to stage another coup!” PP lawmaker Edurne Uriarte told a parliamentary debate over the planned law changes.

Like European democracies

The failed independence bid sparked Spain’s worst political crisis in decades, with then-Catalan leader Carles Puigdemont and several others fleeing abroad to escape prosecution.

Spain says its efforts to have them extradited have failed because many European countries simply don’t recognise sedition as a crime, with the bill seeking to reframe the offence as an “aggravated public disorder”.

The bill aims “to reform the crime of sedition and replace it with an offence comparable to what they have in other European democracies,” Sánchez said earlier this month.

“The crimes committed in 2017 will continue to be present in our penal code, although no longer as crimes of sedition… but as a new type of crime called an aggravated public disorder,” he said.

But even Puigdemont has expressed misgivings about the legal change, saying those separatists celebrating the move “have learned nothing from the last five years”.

The new offence would carry a maximum penalty of five years behind bars, compared with 15 years for the crime of sedition.

Opposition leader Alberto Núñez Feijóo asked Sánchez to “clarify whether he is actually reforming the crime of sedition to protect Spanish democracy or whether he is just trying to politically survive” — implying the bill was payback for pro-independence party support in parliament.

“The PP’s stance is clear: we will increase the penalties for sedition and rebellion, we will make them criminal offences and will make the holding of an illegal referendum a crime,” he said of his party’s position, with a general election on the horizon.

Some reluctance on the left

The PP managed to ensure Thursday’s vote was vocal, a rare procedure in Spain in which lawmakers verbally declare their support or opposition for a bill, in a move forcing the more reluctant Socialists to lay their cards clearly on the table.

Spain’s criminal code currently defines sedition as “publicly rising up and using mass disorder to prevent the implementation of laws, by force or through means outside the law”.

More succinctly, the Royal Academy of Spanish Language defines it as a “collective and violent uprising against authority, against public order or military discipline without reaching the gravity of rebellion”.

The crime has survived various reforms of the legal code, the last of which was in 1995, but its critics say it dates back to the 19th century.

“We are revising a crime that was enacted in 1822 in Spain, dating back 200 years to when there were still military uprisings,” Sanchez said earlier this month, pointing to Germany, where sedition was abolished in 1970.

But reclassifying it as an aggravated public disorder hasn’t satisfied some on the left who fear it could be used against demonstrators.

“It concerns us… (that the new offence) could have some limiting effect on the right to peaceful protest,” argued Pablo Echenique, spokesman for the hard-left Podemos, the Socialists’ junior coalition partner which was behind the moves to abolish sedition.