Spain’s ‘only yes means yes’ (sólo sí es sí) law was intended to tighten sexual consent laws but has caused an almighty political backlash for the government and created a constitutional quagmire by potentially pitting the executive against the courts.

It has, to put it mildly, not gone quite to plan. Most shockingly, however, is the fact that the law has reduced the sentences of and even released over fifty convicted sexual criminals.

One of the cases involved an English teacher working in 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 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.

The Local covered this concerning trend some weeks ago, and you can read about how and why the sexual consent law backfired in this way here. 

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

The problem boils down to a principle in the Spanish penal code that means legislative reform must be applied retroactively, and because the new consent law effectively removed the legal distinction between abuse and rape and the range of sentences for both has been widened, old cases can – and have been – reviewed under the new law with potentially lighter sentences.

The changes

Clearly something isn’t working, so the Spanish government are now trying to fix the controversial legislation.

Passing through the Parliament this Thursday, the much-needed amendment comes as part of broader reforms that also remove sedition from the penal code and reduces the maximum penalty for embezzlement in cases. It aims to try and prevent this retroactive legal loophole and stop sentence reductions and releases.

According to sources from Spain’s Ministry off Equality who spoke to Spanish daily El Diario, a new paragraph will be inserted into the criminal code to “facilitate its application” not only in stopping sentence reductions, but to alleviate both the legal confusion and some of the clashes between the Prosecutor’s Office and the courts.

Much of the legal debate in recent weeks has rested on absence of a legal transitionary mechanism (that is, between the old sexual consent law to the new one) that was included in the broader penal reform changes but not in the original sexual consent legislation.

In order to remove the issue of legal retroactivity, the amendment states that “this code will not be considered more favourable [to defendants] when the duration of the previous penalty imposed on the event with its circumstances is also imposable under the new Code.”

Complicated Spanish legalese aside, if a sentence is provided for under the new law, a reduction in sentence will not be possible. That is to say: if the sentence is within the range of the penalties outlined by the new law, the sentence will not be lowered even if the new consent law lowers the minimum penalty for that crime.

Juan Antonio Lascuraín, a Law professor at the Autonomous University of Madrid, explained to Newtral how this could work in practice: “Imagine that a crime previously received a minimum penalty of 4 years and a maximum of 6. Now the Criminal Code has been reformed and that crime has a minimum penalty of 2 years and a maximum of 4. If a person was sentenced to the minimum penalty before the reform, that is, to 4 years, the transitional regime would indicate that the penalty is not reduced because the 4 years are still a legal penalty with the new law. In other words, four years would still be an imposable penalty according to the new framework.”

Will it work?

Some legal experts still have doubts as to whether the amendment will actually prevent the reduction of sentences for those already convicted of sexual offences. Sexual violence lawyer Saúl Castro, believes that “the transitional provisions to which the amendment appeals refer to the criminal reforms contained in that bill…[but] there is no reference to the sexual freedom law”.

“Therefore, it is not relevant at all.”

Yet PSOE spokesman Patxi López stated in a press conference that the amendment was a way to “remind the courts and judges that there is no reason to reduce the penalties.”

Judges on Spain’s Supreme Court have, in recent days, been reviewing some of the more controversial and emotive cases, such as the 12-year sentence given to a man who raped his daughter Pollença, Majorca. In cases such as these, the Prosecutor’s Office has requested that no sentence reductions are handed out because the conviction would be under the new law already in force.

People Party spokesperson, Cuca Gamarra, said she considered these requests a “lack of respect” for judges because they should only apply rules approved by the Spanish Congress.

The ‘sólo sí es sí‘ law has backfired pretty spectacularly on the government. They have now tried to fix the problem, but it seems that the legal confusion and moral outrage are likely to continue.