Podemos already has a reform proposal that it seized to raise the penalties for sexual assaults without this implying acknowledging a defeat of its law of only yes is yes. ERC and EH Bildu proposed yesterday that the use of violence or intimidation be considered an aggravating circumstance, but without affecting the relevance of consent. This means that it could have the approval of Podemos, where they acknowledge that they have been “informed” of this proposal that offers them a way out of the legal quagmire.
At mid-morning on Holy Thursday, ERC and EH Bildu registered in the Justice Commission of Congress some twenty joint amendments to the text with which the PSOE wants to once again toughen the penalties that the reform promoted by the Ministry of Equality softened.
Podemos described this socialist text as unacceptable, considering that it meant diluting the relevance of consent in the commission of the crime, something that Equality has as a red line. Both ERC and EH Bildu aligned themselves with the ministry of Irene Montero.
The two pro-independence formations consider that their formula makes it possible to toughen the penalties for sexual assaults while maintaining consent as the axis of the crime. They do so by including the use of violence or intimidation as an aggravating circumstance that raises both the minimum and the maximum penalty.
In his opinion, the PSOE proposal gives excessive centrality to violence or intimidation – forming part of an aggravated subtype and not as external elements that toughen the sentence – to the detriment of consent. «On the contrary», ERC and EH Bildu maintain in the explanation of their joint amendments, «this proposal understands that the seriousness of the violence must remain as an aggravating factor of the criminal type, not be reinstated as a qualified type, as long as it is foreseeable that this , in practice, leads to blur until invisible that the violent characteristic of the type of sexual assault revolves around the lack of consent. It is therefore proposed to maintain the wording of the text currently in force.
The toughening of penalties without affecting consent opens up a clear possibility that Unidas Podemos can join this reform. In the unsuccessful negotiations with the PSOE, one of the options raised by the purples was precisely to resort to the incorporation of a new aggravating circumstance.
The amendments signed by Mertxe Aizpurua and Gabriel Rufián even reinforce the importance of consent in the yes is yes law, according to their authors, which would make it easier for Equality to agree to join the reform. They do so by proposing that the mention of violence or intimidation be removed from the article that describes consent and by proposing to add that consent “shall not be inferred” by the “absence of physical resistance or silence of the victim, nor by their conduct prior sexual intercourse.”
“This definition of consent”, explain ERC and EH Bildu in the justification for the amendment, “would have more impact on the evidentiary aspect that determines the impunity of many procedures. It would also make it possible to align with international standards.” “The current wording continues to carry the weight on the negative performance of women,” they add.
Beyond disquisitions about consent, in practice the result of the ERC and EH Bildu amendments would be similar, and even harsher, to that of the PSOE text. Sexual assault would have an aggravated penalty “when violence or intimidation has been used.” In the current text, it only happens in the case of “extremely serious” violence, which leaves out most of the cases.
If the amendment is approved, the penalty range for a violation with the use of intimidation or physical violence would go from seven to 15 years. The minimum sentence would thus become even higher than that prior to the yes is yes law. Then it was six years, that the Equality Law lowered to four and that the PSOE proposes to return to six. With the ERC and EH Bildu proposal, it would be seven when violence or intimidation occurred.
The amendments have been presented when the processing of the reform proposed by the PSOE is in its final stretch. The deadline for presenting amendments to the Commission ends on the 1st and the Socialists plan to take the text to the plenary session of Congress on the 20th. A week later it would return to the Lower House with the approval of the Senate and it would be definitively approved. It could then be published in the BOE and enter into force one day later.
Until now, the Socialists were bound to approve their proposal hand in hand with the PP, which had been in favour. With the new amendments, the Socialists have the new option of assuming the text proposed by ERC and EH Bildu, which would fulfill its essential objective of deactivating the reduction in sentences. Socialist sources in Congress did not want to assess this possibility yesterday. They limited themselves to indicating that they will “study in depth” the amendments.
During the negotiations, the Socialists rejected the aggravating factor because, according to the Minister of Justice, Pilar Llop, it involved “a disproportionate punitive exaggeration” in less serious sexual crimes. As for Podemos, Montero herself echoed yesterday on her Twitter account the news that ERC and EH Bildu presented amendments to the PSOE text, thus implying that the proposals are to her liking.
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