The case had caused a lot of outrage: in January, a convicted sex offender was released early from prison in Lleida, Catalonia, even though he was said to have a high risk of recidivism. He was sentenced to a total of 15 years in prison for two counts of attempted rape and robbery. As a teenager, the man had committed 17 sexual assaults.
After the sexual criminal law in Spain was reformed in October, the case was reopened – and the sentence was reduced by 6.5 years. Because of such cases, Spain has been discussing the reform of “solo sí es sí” for months, in German: “Only yes means yes.” Now the Attorney General wants to challenge the sentence reductions in hundreds of cases, How El País reported on Thursday. An exact number is not available, but in Madrid alone appeals have been lodged in 62 cases, the newspaper quotes sources from the State Ministry. In the vast majority of cases, the Supreme Court could, if it wanted to, overturn the judgments of the provincial courts.
Since the law was passed, hundreds of offenders have had their sentences reduced
Because the law, which is actually intended to strengthen women’s sexual self-determination, had the paradoxical consequence that the sentences for at least 646 convicted criminals were reduced, according to the latest information according to the Europapress news agency. At least 65 people have been released early from prison since October.
With the new regulation, sexual acts can only be classified as consensual if everyone involved agrees to them. Sex against a woman’s will is also counted as rape if she does not actively defend herself or verbally disagree. The background is that rape victims often keep still and remain silent out of fear or shock.
Until now, Spain had distinguished between sexual abuse and sexual assault. When there was no violence or intimidation involved, the penalty was significantly less. But that also applied, for example, if the perpetrator had previously administered knockout drops and the woman was unable to say that the process was committed against her will.
What has now led to the current problem: In the course of the reform, the level of punishment for the offenses was also adjusted: the minimum level of punishment was lowered, the maximum level of punishment was raised in some cases, so the judges’ scope for punishment increased. In Spain, however, cases can be reopened in court following a change in the law that could benefit those convicted. So several offenders filed applications for the retrial of their proceedings – with the consequences described: A number of judges apparently took the opportunity to orientate themselves in the direction of the lower minimum sentence in certain cases.
The protest in the country was and is huge. The main point of criticism: Shouldn’t one have foreseen that this would happen? After all, the General Council of the Judiciary (CGPJ) had already warned in 2021 that penalties could be reduced in this way. The feminist organization Confluencia Movimiento Feminista criticizes that the Ministry of Equality ignored the warnings from experts and also did not sit down with women’s rights organizations. They tried to tackle a “deeply complex problem” – but without enough time and without enough depth, the group said on request.
Now there is a proposal for a reform of the reform of the law
Other women’s rights organizations have complained that the confusion has led to the rejection of a law “which is crucial to confronting and eliminating sexual violence against women”. This is how several organizations write in a manifesto published in February. Equal Opportunities Minister Irene Montero (Podemos), in turn, accuses the judges of “macismo”.
At the beginning of February, Prime Minister Pedro Sánchez’s social democratic workers’ party PSOE presented a proposal for reforming the law. Accordingly, in the future, for example, whether penetration should be relevant for determining the level of punishment. Parliament has not yet approved the reform of the reform. Equal Opportunities Minister Montero does not want to change the principle of approval under any circumstances. Because with the innovation, no woman will have to prove in the future that she has experienced violence or intimidation.
Part of the law is also the promise to set up more centers for victims of sexual violence and to offer more educational work on prevention and support for those affected. The conservative People’s Party PP and the right-wing populist party Vox voted against the law.
In this country, too, there are repeated calls to reform sex criminal law. So far, a good 48,000 people have signed a petition that has been running for two years. The women’s rights organization Terre des Femmes supports such efforts in Germany: “It would be a paradigm shift,” says Sina Tonk, head of the domestic and sexualized violence division. “Only yes means yes” does not mean that you always have to explicitly ask each other for consent, she explains: “Active participation can also be a form of consent.” With the current regulation, however, there is often a perpetrator-victim reversal, Tonk complains: the raped woman is asked why she didn’t say no. In Germany, the principle “No means no” has applied since 2016.
The reason for the legal reform in Spain was an incident in Pamplona in 2016, when five men raped an 18-year-old and then distributed videos of the crime via the WhatsApp messenger. Because the court found no violence or intimidation, they received a lesser sentence – later the Supreme Court increased the sentence. The incident, known as “La Manada” (English: the pack), was followed by protests across the country.