With the law “Only yes means yes”, Spain is regarded as a pioneer in the punishment of sexual offences. But as it seems, the regulation contains a contradiction: Even if rapes are punished more severely, the punishments are reduced elsewhere. Some perpetrators are already on the loose.

Better protect women from sexual violence, punish every rape severely. That was the goal of the left-wing Spanish government with its law “Only yes means yes”. In practice, however, the new sexual criminal law runs counter to this aim, and some perpetrators were released early from prison as a result of the reform. The outrage is great – and the flagship project, of all things, is causing difficulties for those in power in Madrid a year before the election.

In Spain, penalties are changed retrospectively when a legal reform benefits the convict. This is now partly the case with the “Only Yes Means Yes” law, which went into effect on October 7th. Although it provides for tougher measures in the case of rape, it also reduces possible penalties for other sexual offences.

Several hundred convicts therefore applied for a retrial and the courts have already agreed with some of them. For example, a man who sexually abused his stepdaughter had his sentence reduced from eight to six years in prison. A teacher who paid four underage students to have sex was even released with most of his six-year, nine-month sentence commuted.

These cases put the left-wing government of Prime Minister Pedro Sánchez, and most notably Irene Montero, the Podemos Party’s Minister for Equality, on the defensive. Montero accused the judges, who issued sentence reductions under the new law, of “macismo.” The Podemos MP Javier Sánchez Serna even berated the lawyers as “fascists in robes”. The General Council of the Judiciary, which represents the judges, protested against these “unacceptable allegations” and recalled that it had already warned the government of the legal risks during the debate on the planned criminal law reform in February.

The “Only Yes Means Yes” law requires explicit consent to sexual activity; any non-consensual act is considered rape. The previous distinction between sexual abuse and sexual assault has been abolished – there is now only the criminal offense of sexual assault. Since this now covers a broader range, the maximum and minimum fines possible with it were changed at the same time.

For example, the distinction between sexual “abuse” and sexual “aggression” was crucial in the 2016 gang rape case in Pamplona that shocked Spain. Five men attacked an 18-year-old on the edge of the traditional bull hunt. The five, who called themselves “La Manada” (“The Pack”), filmed themselves molesting the drunk young woman in a dark hallway. They then shared the recordings via WhatsApp.

The five perpetrators were sentenced to nine years in prison in 2018 for “sexual abuse” and not for “sexual assault”. The court had assessed it as consenting behavior that the young woman appeared quiet and passive in the film recordings and did not seem to actively defend herself.

Tens of thousands of women took to the streets to protest the verdict. In 2019, the Supreme Court finally classified the acts as sexual “assault” and increased the sentence to 15 years in prison. The government then promised to reform the sex crimes law, which it did. The lawyer for the five convicts has already announced that he will also try to reduce the sentence slightly for his clients – since the new law also allows lower penalties for sexual “assault” in some cases. If he succeeds, it would be devastating for the reputation of the Sanchez government.

The affair provides the conservative opposition People’s Party with ammunition against the government. “It endangers the victims and society,” criticized the People’s Party and called for Montero’s resignation. Some ministers are now banking on a reform of “only yes means yes”. But even that could not prevent early release – because changes in the law do not apply retrospectively if the new provision is unfavorable for the convicted person.

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