The Controversy around Spain’s “Only Yes Means Yes” Law

When expats move to Spain, they may be surprised by certain differences in the way the legal system works versus in their home country. One of the most important laws is that governing consent, sexual assault and rape. 

In the past, the burden has always been on the victim to provide concrete proof of physical violence, threats or intimidation. If it were impossible to prove that violence or coercion took place, the case could not be made for rape. The worst that the attacker could be convicted of was “sexual abuse,” which was considered to be a much less serious offense and therefore carried a much lighter prison sentence.

“Only Yes Means Yes”

In early 2022, the Spanish Congress of Deputies approved a law nicknamed the “only yes means yes” law, which underlines the need for explicit consent as the key to women’s sexual freedom. It is designed to do away with the idea of the ambiguity of consent. The bill states that “consent is recognized 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.” 

The motto “only yes is yes” (solo sí es sí) was born from public outrage following the trial of the gang of rapists known as La Manada (“the wolf pack”) in 2016. The five men, who attacked an 18-year-old woman in Pamplona during the San Fermin running of the bulls festival, were convicted of sexual abuse, but not for the more serious crime of rape. Why? The victim couldn’t prove that she hadn’t given her consent. Nor could she prove that the group had threatened to physically harm her or had exerted force in order to get her to comply.

Two of the men actually filmed the attack, the young woman’s silence and passivity onscreen was interpreted by the judges on the Provincial Court of Navarra as giving consent for the sexual act—in a public place, with five men she had only just met, while drifting in and out of consciousness. In 2019, the Spanish Supreme Court overturned the original verdict, changing the conviction to rape and sentencing each of the men to 15 years in prison.

Several members of the Spanish government—led by the Minister of Equality, Irene Montero—responded by fighting to not only amend the penal code, but also bring about a paradigm shift when it comes to the culture of re-victimization of sexual assault victims within the legal system. For example, by encouraging police, prosecutors and judges to leave behind antiquated gender norms and concepts as so how a rape victim “should” react to trauma; also, by refraining from dissecting a victim’s past sexual history, or asking questions such as “What were you wearing? Were you drinking? Are you sure you closed your legs properly?”

The “Old” New Law is Passed

The Law of Comprehensive Guarantee of Sexual Freedom was passed by the Spanish Congress of Deputies in May 2022, with 201 votes in favor, 140 against—all from the conservative parties PP and Vox—and three abstentions. After much debate, it was officially ratified by the Senate in July 2022. An amended version of the bill was returned to the Spanish Parliament and passed with 205 votes in favor, 141 votes against and three abstentions; on October 7, 2022 the new law, Ley Orgánica 10/2022, de 6 de septiembre, de garantía integral de la libertad sexual, went into effect.

What the Law Says

The law’s most notable changes include: 

• Express affirmative consent during a sexual act as defined by the Istanbul Convention is the only legally accepted form of consent.
• The end of the legal distinction between “sexual abuse” and “rape.” If a sexual act occurs without consent, it is rape, regardless of demonstrable evidence of physical or psychological violence or threats. 
• Several aggravating factors are specified: If the perpetrator is the romantic partner or ex-partner of the victim; if violence or intimidation were used; if more than one perpetrator was involved in the rape; if any chemical substances were used to override the victim’s will; if the victim is a minor (under 18 years of age).
• The law clearly defines certain acts that fall under the legal heading of sexual violence: “Any act of a sexual nature that are not consented to or that condition the free development of sexual life, including rape, sexual assault, harassment, exhibitionism, sexual provocation, sexual exploitation, corruption of minors, female genital mutilation, sexual femicide, forced marriage, sexual trafficking, and, in the digital sphere, the dissemination of acts of sexual violence, non-consensual adult pornography and child pornography, dissemination of intimate photos and videos, and other sexual extortion through technological means.” In all cases, the victim must be willing to file a formal complaint.
• Any kind of advertising for prostitution and pornography is banned.
• Electronic monitoring in the form of bracelets embedded with geolocation devices may be used to keep sexual offenders away from their victims and/or minors.
• Public crisis centers offering 24-hour assistance to victims as well as their loved ones will be created, with the stipulation that there must be at least one crisis center in each Spanish province by the year 2024. 
• Special help centers will also be set up for minor victims of sexual violence.
• Economic aid will be made available for victims of sexual violence who earn less than the minimum wage and/or who have also been victims of economic gender violence.
• Foreign women who are in irregular administrative situations (meaning, workers who are undocumented) who are victims of sexual violence will have the right to claim legal residence and be given work permits
• Broader measures to implement sexual education and raising awareness of gender quality in the education system and in society in general, including training on how the Internet and new technologies can be misused to perpetrate gender and sexual violence as well as violate individuals’ right to privacy.
• The State Pact Against Gender Violence guarantees funding for these services are guaranteed by law, in perpetuity. (In the past, financing was dependent on the whim of each individual government regime.) All public administrations, such as the Public Prosecutor’s Office and the General Council of the Judiciary, will have to submit a financial report every four years, demonstrating compliance with the Pact.

Immediate Backlash

Those who voted against the bill, such as Vox deputy Carla Toscano, claim that the law “forces the system to believe women without any proof,” and that “in many cases [of sexual intercourse] it is impossible for men to prove consent.” She says that the law could be misused by vengeful women who want to destroy the lives of innocent men. Popular Party deputy Marga González says that the law “puts the presumption of innocence at risk,” and conservative news outlet Diario ABC says that the law will lead to “an almost obsessive inquisitorial trial against men." Similar arguments were and continue to be used by the Spanish right when objecting to the gender violence law that was passed in 2004.

The government Delegate Against Gender Violence, Victoria Rosell, countered the sexual consent law’s with this: “No legal definition… can affect the constitutional right to the presumption of innocence,” stating that the burden of proof always lies with the prosecution, which must make its case in order for a conviction to occur. 

The Socialist parties—who pushed the “only yes means yes” legislation through after months of negotiations—were not happy with some of their conservative colleagues’ insistence on the removal of clauses that would have criminalized prostitution, saying that the law did not go far enough in protecting women from all kinds of sexual violence—but in the end, it was necessary to amend their original proposition in order to enough support to pass the bill. 

Unintended Consequences

It wasn’t long before a new controversy erupted.

With the elimination of the charge of sexual abuse, the legal definition of sexual assault was broadened to include those offenses previously classified under the lesser charge of sexual abuse. In conjunction with broadening the definition, the new law also lowered the minimum sentence for sexual assault. This led to the unintended consequence of many current offenders tried under the previous law having their terms reduced on appeal. How is this possible? Because in Spain, sentences can be modified retroactively if a change in the penal code benefits the offender.

By April 14, 2023, El Consejo General del Poder Judicial (General Council of the Judiciary) updated the registry of people who had had their sentences amended. In just over six months, 32% of the sexual assault cases reviewed in Spain had resulted in a sentence reduction; over 100 offenders had been released and nearly 1,000 had seen their sentences reduced.

Could This Have Been Avoided?

Yes.

How? By including a transitional clause to ensure a smooth transition from the prior law to the new law. A transitional clause could, for example, state that if a sentence already being served is within the range of penalties outlined in the new law, it shall be maintained, without being subject to any reductions. 

“This happened because non-experts wrote the law. There was this almost obsessive idea to unite all sexual crimes into one category … and technically, it was extremely difficult to pull off,” Elena Inigo Corroza, a law professor at the University of Navarra, told Anadolu Agency.

The “New” New Law

PSOE rushed to amend the law but could not gain the support of coalition partner Unidas Podemos, and had instead to rely on the support of the Partido Popular and other conservative groups like Ciudadanos, PNV and PdCat to push through the reform with the final vote at 231 votes in favor, 19 against and four abstentions.

The current law, Ley Orgánica 4/2023, de 27 de abril, which went into effect on April 29, 2023 still does not distinguish between sexual abuse and sexual assault, as the old law from 1995 had, but it does differentiate two penalties: one for sexual assault without violence or intimidation, and the other for when violence is used. Sound familiar?

The April 2023 law significantly amended the criminal code; it established penalties similar to those that existed before, and it reintroduced the need to quantify the level of violence and intimidation that aggressors exert on victims in sexual offenses in order to determine sentencing.

But, it cannot close the loophole that offers offenders sentenced under the previous law of 1995 the ability to shorten their sentences. According to Publico, “What is clear is that despite the reform, sentence reductions will continue, since it is the constitutional right of an individual to avail themselves of the most favorable law. Therefore, the new reform will only serve any new crimes that have been committed since the law went into effect.”

As of September 2023, 1,155 sex offenders have secured sentence reductions, of which 117 have been released from prison. A case in point: Ángel Boza, one of the members of La Manada—the gang rape case from 2016 that sparked the outcry for change—received a reduction in his sentence in September this year.

Rape and Sexual Assault Stats

In 2022, 2,870 rapes were officially reported in Spain, which is the highest number on record so far and an increase of 34% from the previous year. This number equates to eight rapes being perpetrated every day.

The newspaper El País estimates that approximately 400,000 acts of sexual violence, ranging from verbal abuse to physical assaults, are perpetrated in Spain each year—one quarter of these against minor children. Only a small fraction of these acts are ever reported. 

According to Amnesty International, several other European countries have introduced similar legislation in recent years, clearly defining the legal concept of rape as sex without clear consent; among them Denmark, Croatia, Greece, Malta, the Netherlands Sweden, Iceland and Slovenia. 

In Spain, the confidential helpline 016 exists to assist victims of all forms of gender violence, including sexual violence; it can also be reached by sending a WhatsApp to +34 600 000 016. Its services are offered in 53 languages and won’t show up on your phone bill.