THIS week it emerged that Spain’s new ‘only yes means yes’ law, which is aimed at putting consent at the centre of sexual abuse cases, is actually being used by sex offenders to reduce their prison sentences or to even get out of jail early. 

On Tuesday news broke that the legislation, which came into force in early October, had been used to reduce the sentence of a man who abused his 13-year-old stepdaughter from eight to six years. Since then, a series of similar cases have come to light, including an English teacher who abused his students who was released from jail on time served, on the basis that his victims were over 16 and thus could consent. 

What was the aim of the law?

The ‘Full Guarantee of Sexual Freedom Act’ was drawn up by the Equality Ministry – run by leftist Unidas Podemos, the junior partner in Spain’s coalition government – in the wake of the infamous rape case at the 2016 Running of the Bulls fiesta in Pamplona. Under the new law, consent must be given and cannot be assumed to have been given either by default or with silence. The legislation also removes the distinction between sexual abuse and sexual assault – i.e. rape – by making consent the deciding factor.  

What is the apparent loophole?

The problems have arisen due to the change in definition of offences, and their associated minimum and maximum prison sentences in the case of a conviction. Minimum sentences have been lowered, in general, in the absence of aggravating circumstances. The changes have led to a flood of requests by lawyers in the courts for their clients’ sentences to be reviewed. 

What has been the effect of the changes?

The new legislation has allowed convicted sex offenders to have their sentences reexamined. On Wednesday alone, Spanish media reported that 13 sentences had been reduced in several different regions, and that three convicted sex abusers had actually been released as a result. One of the cases involved a man in León who had abused his 11-year-old daughter. Judges ruled that instead of ‘sexual abuse of minors’ he had in fact committed ‘sexual assault of minors’, which carries a six- to 12-year sentence compared to the original eight to 12. 

How can the sentences be changed?

Under Spanish law, any change to the minimum sentence for an offence can be applied retroactively, and judges usually rule in favour of the convict in such cases. That means that where the minimum sentence for a sexual offence has been reduced, a person serving time for the same offense can expect to spend fewer years in prison or even be released on time served. 

What does Unidas Podemos say?

The Equality Ministry, which is run by Unidas Podemos and headed up by Irene Montero, insists that there is no loophole in the law and is blaming ‘sexist’ judges for their interpretation of the legislation. Speaking this week on the Cadena SER radio network, Montero claimed that the law was reviewed by ‘a series of organisations’ and none of them found that it was possible to use it to reduce sentences.

And the Socialist Party?

Prime Minister and Socialist Party leader Pedro Sánchez defended the new law on Wednesday, calling it a ‘great achievement of the feminist movement’. The ‘cutting-edge law’, he added, would ‘inspire many other laws around the world’. He called for time to see how the courts standardised its interpretation, and established case law. Former deputy prime minister Carmen Calvo, who is currently the chairperson of the Equality Commission in Congress, called on Friday for a ‘quick’ solution to this ‘serious problem’. The defence minister, Margarita Robles of the Socialist Party, stated that she didn’t like to hear the judges being ‘discredited’ in a general way, a clear reference to Unidas Podemos’s comments. The row risks driving a wedge between the two political parties. 

The judges’ response

Legal experts insist that there are problems with the drafting of the law and that there should have been a transitory measure in the text – something that is usually found in such changes to the Criminal Code – to limit undesired effects such as these, where convicted sex offenders are benefitting from the changes. The CGPJ legal watchdog condemned the comments made by Equality Minister Irene Montero, calling them in a statement ‘intolerable attacks’ and saying that they ‘harmed the confidence of victims’ in the justice system. Spain’s four judges associations also slammed the ‘infantile and absurd’ reaction of the minister. 

Different interpretations

Not all judges are interpreting the new legislation in the same way, however. In La Rioja region, the president of the Provincial Court decided that the Criminal Code itself contains a clause that prevents the reduction of a prison sentence when such a change to the law is made. 

What happens now?

The provincial courts of Madrid, Zaragoza, A Coruña and the Basque Country have called meetings from next week with the aim of clarifying the criteria to be used when considering the reduction of prison sentences. Assuming that the government does not intervene and make changes to the law, it will be the Supreme Court that will have the last word, establishing the case law that will be used in the future on the basis of appeals brought to it from lower courts.

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