Why is Spain reducing prison sentences for rapists?

Spain's groundbreaking 'only yes means yes' legislation was meant to tighten the law on sexual consent, but in its first few weeks of application has directly led to the reduction of prisons sentences of least eleven convicted sexual criminals.

Of these known eleven cases, five have been released.

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

It is expected that the Spanish courts will likely have to review dozens more cases, and a political storm is brewing between the government and the courts over legislation that was intended to help victims of sexual assault but seems, in practice, to be more favourable for defendants.

Irene Montero, Spain's Equality Minister and architect of the law, has denied any responsibility for the reductions and releases and instead shifted the blame to judges for making a "reactionary and surprising reading of the law."

Montero is from the so-called 'far-left' junior partner in the government coalition Unidas Podemos, whereas PSOE members of the coalition seem to be quietly distancing themselves from the divisive Equality Minister's claims. PSOE figures have promised to study the law again, as well as the Sexual Freedom law passed in the Congress of Deputies this August.

Finance Minister María Jesús Montero said this week that a detailed analysis of the practical implications of the law must be made because "obviously" the objective was never to reduce sentences, rather "the opposite."

Reductions in sentences

Of the 11 known cases so far, six convicted sex offenders have had their sentences reduced, and five have been released. Of those released, two were serving sentences in the Balearic Islands, another two in Madrid and one in Ourense.

One of the cases involves an English teacher working in the San Sebastián de los Reyes area of Madrid who was convicted of sexually abusing four of his students and possessing child pornography. His sentence was reduced from seven years to just one and a half.

Another involved a man who sexually abused his 13-year-old stepdaughter and has had his sentence reduced from eight to six years.

A man who raped a woman after meeting her through the dating-app Tinder also had his sentence reduced from eight to six years.

In Madrid one convicted sex offender, who abused his 4-year-old niece, had his sentence reduced to such an extent that it meant his "immediate freedom" and release.

Why is Spain's new sexual consent resulting in more lenient sentences?

Spain's Equality Ministry have blamed the reduced sentences and releases on "voluntary judicial interpretations against the advance of feminism."

The government's delegate against Gender Violence, Victoria Rosell, said in a press conference that the blame belong to the courts not the government. "With proper training," she said, "this would not have happened."

But political blame games aside, how and why is this actually happening?

In all the known cases so far - which were overseen by different judges, it should be noted - the reductions rest on the principle in the Spanish Criminal Code that establishes any legislative reform that could favour the defendant must be applied retroactively, which is why there have been reductions and releases related to old cases in recent weeks.

Put simply, the 'only yes means yes' law effectively removed the legal distinction between sexual abuse and rape. That is to say, by grouping rape and abuse together, the law has widened the range of potential penalties for both crimes.

In other words, the minimum sentences for minor crimes became lower, and the maximum sentences for the most serious crimes higher.

As the law must be applied retroactively, this means that all defendants sentenced with the old minimum penalty are now within their legal rights to request a review of their sentences because, if they had been sentenced under the current law, it could have plausibly been lower.

Crucially, retroactive sentences can be reduced but not increased.

Warning signs

Though the reductions in sentences seem to have come as a surprise to the government, legal experts did warn the new legislation could have this effect.

Spain's General Council of the Judiciary (CGPJ) warned in its report during the preliminary draft stage of the bill that that the law would cause the reduction of "of those convictions in which the maximum penalties have been imposed" under the previous rules. Similarly, the right-wing People's Party (PP) also warned about potentially counter-intuitive consequences.

The PP's deputy secretary of Social Policy, Carmen Navarro, presented an amendment to the bill at the draft stage in which she warned of the reductions in sentences. "With the 'only yes means yes' law populism wins," she said, "and we all lose."