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How Spain is trying to fix its new trouble-ridden sexual consent law

Spain's controversial new sexual consent legislation has been blamed for reduced sentences and even the release of rapists. Faced with mounting political pressure, the government is now trying to fix it. Here's how.

How Spain is trying to fix its new trouble-ridden sexual consent law
Spain's Minister of Equality Irene Montero has spearheaded the legislation and is at the centre of the controversy surrounding Spain's new sexual consent law. (Photo by PIERRE-PHILIPPE MARCOU / AFP)

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.

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Spanish government under attack over undercover police tactics

The Spanish government is under fire over allegations police officers infiltrated far-left and green groups and had sex with activists to win their trust and gain information.

Spanish government under attack over undercover police tactics

The scandal broke when Catalan media La Directa reported in January that a police officer going by the name of Daniel Hernández had sexual relations with various members of a Barcelona squat and far-left movements since 2020.

The intimate relations in one case lasted nearly a year, according to the alternative publication based in the Catalan capital.

Six women have filed a complaint against the officer, accusing him of sexual abuse. They argue their sexual consent was obtained on the basis of lies.

One of the women’s lawyers, Mireia Salazar, told AFP the goal of the complaint was “to know how far these practices go, which in our opinion, have no legal justification.”

The scandal deepened after the Madrid branch of climate activist group Extinction Rebellion said last week it had been infiltrated by a female police officer who “had sexual relations with at least one of its members”.

The affair recalls the case in Britain of Kate Wilson, an environmental activist who was tricked into a sexual relationship with an undercover officer for nearly two years.

In a landmark ruling in 2021, a tribunal concluded that the police had violated her human rights.

‘Moral limit?’

In Spain, the Hernández case has sparked outrage, especially in the northeastern region of Catalonia which sparked the country’s worst political crisis in decades in 2017 with a failed independence push.

It comes after Spain’s central government admitted last year that it spied on the mobile phones of 18 Catalan separatist leaders using Israeli spyware Pegasus.

READ ALSO: Spain needs more transparency over Pegasus: EU lawmakers

“Where is your moral limit, where is your ethical limit?” Gabriel Rufián, a top lawmaker with Catalan separatist party ERC, asked Spanish Prime Minister Pedro Sánchez last month during a debate in the assembly.

“It is not just a threat to political freedoms, ideological freedoms, but also – it seems – sexual freedoms”, he added in a reference to the case of the undercover Barcelona police officer.

Sánchez’s minority leftist coalition government regularly relies on the ERC to pass legislation in parliament.

Criticism has also come from far-left party Podemos, the junior coalition partners of Sánchez’s Socialists.

“It is violence against women,” secretary of state of equality, Angela Rodríguez of Podemos, told Catalan radio station Rac1. “And I think that the sooner that we know what happened and justice can be
done, the better it will be for the reputation of security agencies,” she added.

‘It was a shock’

The scandal comes as Sánchez’s government grapples with waning support ahead of regional elections in May and a year-end general election.

Contacted by AFP, both the interior ministry and the police declined to comment on the allegations. But during a recent debate in parliament, Interior Minister Fernando Grande-Marlaska dismissed the ERC’s accusations of “illegal activities” by police as “a lie”.

Undercover police also reportedly infiltrated a far-left group in the Mediterranean port of Valencia, and a Barcelona housing rights group called “Resistim al Gotic”, although in these cases there are no allegations of improper sexual relations.

According to La Directa, a police officer calling himself Marc Hernández pretended to be a “Resistim al Gotic” activist for nearly two years before the publication unmasked him in June.

“When the information was revealed, it was a shock,” Martí Cusó, a member of the group, told AFP. “We did not suspect anything, we had no clues that his person could be a police officer,” he added.