The controversy broke out last week with the reduction of sentences for 12 men already convicted of sexual abuse. The sexual freedoms law, known in Spain as the “only yes is yes” law, focuses on the absence of consent to determine the existence of a violation, eliminates the difference between sexual abuse and assault, but seems to be having the opposite effect to the intended.
What is at stake is the new classification of crimes. Since the entry into force of the law, any sexual crime is considered assault, whether or not there has been explicit violence. The norm lowers the basic minimum sentences, but introduces a series of aggravating factors -superiority, kinship, physical violence, among others- that, if proven, increase the sentences. The problem appears in cases that have already been tried in which aggravating factors were not considered and, therefore, are reviewed with the new penalties.
“If these aggravating factors were not contemplated in the wording of the previous sentence, they cannot be incorporated now, so the revision of the sentences is carried out in accordance with the current base sentence, which is lower than the previous one,” explains Pino. de La Nuez, president of the association of women jurists Themis. “We have to study it on a case-by-case basis, but that’s where the feather reduction is happening.”
The retroactive review of sentences is guaranteed by the Spanish penal code, provided that the new law is beneficial to the accused. According to article 2.2, “the new laws will have retroactive effects if they favor the accused even if, on the date of entry into force, there is already a final sentence and the accused is serving his sentence.” It is a right of those already convicted, but whose effect on the reduction of sentences could have been avoided. “A transitory provision could have been incorporated into the law that said that retroactivity would not apply to cases already tried. And we warned that this could happen”, says De La Nuez.
The solution? “Now we are waiting. First, that this transitory provision be incorporated. Then, we are waiting for an internal circular from the Public Ministry that tells the inspectors how they have to work and we are also waiting for the Supreme Court to unify criteria and define a doctrine. But all this will be for the review cases that arise from now on, not for those that are already in the review process, ”he clarifies.
After the first reviews, the Ministry of Equality has defended itself by saying that all laws are subject to the interpretation of judges and that what is lacking is training in gender policies to avoid these cases.
The Secretary of State for Equality and Against Gender Violence, Ângela Rodríguez, says that there are “serious problems with the judiciary, its gender prejudices and its interpretation of the reality they judge.” The minister, Irene Montero, explained in statements to journalists that “there are judges who are not complying with the law” and that she hopes that the criteria will be unified “to guarantee the protection of women as established by the Organic Law of Guarantees Integral”. of Sexual Freedom and that the aggressors do not go unpunished”.
Pino de la Nuez does not deny this fact, but argues that the problem is much broader and asks not to point fingers at the judges. “The judicial class is being formed, but also lawyers, inspectors, social workers, psychologists, forensics… and society? Are we not to blame for this lack of sensitivity and support?” He wonders.
Despite the controversy, the jurist argues that, for the cases that are tried from now on, this is a more comprehensive law, but that measures must be taken so as not to harm the cases that have already been tried. And above all, do not convey an image of lack of protection to the victims. “It is a much broader law, but you have to understand it. That it is a law that believes in women and that understands crimes in another way. But it is a very profound reform”.
The new law represents a paradigm shift in the conception of these crimes because it focuses on the existence or not of consent to determine whether there has been a violation. Until today, the Criminal Code established that the act against the sexual freedom of another person without their consent was sexual abuse, and that only if there was violence or intimidation would the crime be rape. The new formula puts consent at the center and removes the distinction between rape and abuse, so that rape is defined solely on the basis of the absence of consent.
The objective was to update the Penal Code and adapt it to what is contained in the Istanbul Convention, signed by 20 member states of the European Union in 2011, including Spain. “We have to work on this new law and if there has been an error, recognize it and go back. And, above all, to guarantee the victims, who fought so hard to make these crimes viable, that they have embarked on a path as tough as a judicial process on complaints of sexual violence, which will not give rise to any type of impunity ”, insists the jurist .
political controversy
The cases collided, once again, against the Government and the opposition, who accused the Executive and, in particular, the Minister of Equality, of not protecting women. On the part of the Executive, members of Podemos closed ranks with Irene Montero, while members of the socialist wing admitted the possibility of reviewing the law.
The Minister of Finance and Deputy General Secretary of the PSOE, María Jesús Montero, has stressed that the law must be “studied” “carefully”. “Obviously it was not the objective of the law that the sentences for child abuse could be reduced. We wanted the opposite. It would be necessary to study the penalties to see what issues are being addressed and the legal text itself.
Patxi López, Socialist parliamentary spokesman, agreed with the same speech and, in statements to the media, insisted that “the first thing” is to analyze the sentences and then “see if these situations are permitted by law or due to a misinterpretation of the same”. If it is the law, it will have to be analyzed”. The President of the Government, Pedro Sánchez, did not want to elaborate on the subject and only stressed that “it is up to the courts and the Public Ministry to unify this doctrine”.
Not all of the revised convictions have been subject to lower sentences. It is expected that the pronouncement of the Supreme Court at the end of the month will bring the desired unification of criteria.
Source: TSF
