The Government has approved this Tuesday the project of the Organic Law of Comprehensive Guarantee of Sexual Freedom, the so-called law of the only yes is yes’, after more than a year since the first round and its evaluation by the advisory bodies. The law has a criminal part that ends the distinction between sexual assault and abuse, a crime the latter that disappears, but also establishes prevention, care and reparation measures for victims of sexual violence, in the style of the system that already exists for women. of gender violence within the partner or ex-partner. These are its keys:
The Government will maintain the current maximum penalties for violations in the new sexual freedom law
How is consent defined?
The norm modifies the Penal Code and subsumes the crime of sexual abuse in that of aggression. The objective is to adapt to the Istanbul Convention, which requires that the regulation of sexual crimes is based on consent and not on other elements. Currently, for sexual assault to occur, violence or intimidation is required, while if these requirements are not met, the act is considered abuse. The new law ends with this difference, so that any act without consent will be considered sexual assault.
What’s more, make explicit in the text what is meant by consent, that is, it translates into criminal terms the now classic slogan ‘only if it is yes’, which the Supreme Court endorsed in the sentence of ‘the herd’. After the changes introduced in the latest version, it remains as follows: “It will only be understood that there is consent when it has been freely expressed through acts that, in light of the circumstances of the case, clearly express the will of the person.”
And the penalties?
Regarding the penalties, sexual assault without penetration goes from between 1 and 5 years in prison to between 1 and 4, while if there is penetration – here the term rape is maintained – the range goes from between 6 and 12 years to between 4 and 12. The Government, which has modified this part in the latest version of the text with respect to what was approved in March 2020, understands that the chosen formula implies a broader and more progressive range designed to bring together all the behaviors that result from uniting aggressions and abuses, for which the Penal Code currently associates less punishment. In addition, an attenuated type of sexual assault is established with penalties of one year in prison or a fine of 18 to 24 months.
What if there are aggravating factors?
If there is an aggravation, the range of penalties will go from 2 to 8 years if there is no penetration (currently it is 5 to 10) and from 7 to 15 when there is penetration (currently, from 12 to 15). These limits are also the maximum contemplated in case there are two or more aggravating factors.
Regarding the circumstances that can increase the sentence, some new ones are added: if the aggressor is a partner, ex-partner or relative of the victim or if he uses drugs to override the will of the victim. Furthermore, acts that are accompanied by “extremely serious violence” or “particularly humiliating acts” will also be punished more severely. The aggravating circumstance of group aggression is maintained as now in the Penal Code. However, now it does not exist for sexual abuse, so with this law it can be applied to any aggression, while cases in which the aggressor uses drugs and leaves the victim unconscious are now considered abuses that will also become sexual assaults.
What about street harassment?
The norm incorporates in the Penal Code a crime of harassment that aims to pursue what is commonly known as “street harassment”. It is a minor crime that will punish those who “address another person with sexual or sexist expressions, behaviors or propositions” when “they believe in the victim an objectively humiliating, hostile or intimidating situation, without constituting other more serious crimes “. In this case, penalties of a fine, permanent location or work for the benefit of the community will be imposed.
Will sexual crimes be tried in specialized bodies?
Yes. Sex crimes will be the competence of specialized courts, that is, with judges and prosecutors trained to do so. However, the law gives a period of one year to submit a project to amend the Organic Law of the Judicial Power and the one that regulates the Organic Statute of the Public Prosecutor’s Office. The objective is to review the competences of the Courts of Violence against Women and decide how this specialization is carried out: if expanding them or creating new courts. c
Initial and ongoing training is also provided for all operators involved in a sexual assault proceeding: judges, prosecutors, forensics or State Security Forces and Bodies. The Comprehensive Forensic Assessment Units (UVFI), which currently issue reports only for cases of abuse within the partner or ex-partner, will expand their powers for cases of sexual violence.
Who will be the victims?
The law also equates victims of sexual violence to those of gender on this point. Currently, those who suffer violence by their partners or ex-partners can be considered victims regardless of whether they report or not and have access to certain rights and assistance so that it will not be necessary to have reported, but will serve with a report from Social Services, health or specialized centers. The same provision includes the law of sexual freedom for victims of sexual crimes: going to the judicial system will not be an essential requirement to be officially accredited as a victim.
On the other hand, the law provides that women in an irregular situation are not deported once they report the violence they have sufferedIn other words, the expulsion file should not be opened and, if applicable, suspended if they do not have papers. This is a protection mechanism that already exists for gender-based violence within the partner or ex-partner.
And the minors?
In this last phase of work, victims of sexual crimes who are minors, who constitute half of the complaints filed, have been incorporated into the law, according to statistics from the Ministry of the Interior. It also eliminates for them the distinction between assault and sexual abuse.
Where will they be served?
The norm also establishes the start-up of a network of comprehensive care services for victims. Currently, these types of resources are scarce and in some autonomous communities they do not even exist. For this reason, it is foreseen, within the scope of the Public Administrations, that telephone and face-to-face information and advice resources be established. On the one hand, the so-called 24-hour crisis centers, which are designed to assist victims in times of emergency and for which the Council of Ministers has already set up a credit line.
For minors, the implementation of specialized and adapted services is foreseen in which to attend to them in all aspects: psychological, educational, legal … The idea is to implement the model of the so-called “children’s houses” generalized in other countries. These become the place of reference and all the professionals involved in the case travel there, so that the minor is not subjected to the journey that he is normally forced to go through.
What do you foresee in the area of prevention?
Prevention and awareness of sexual violence is intended to be another axis. To this end, it provides that the educational system must include content on sexual education in sexual equality and affective diversity based on the age of the students, as well as protocols to prevent and detect such violence. The different Administrations must launch institutional campaigns, especially focused on combating “gender stereotypes and false beliefs” about the victims.
What about prostitution?
The latest version of the law incorporates as a novelty compared to the document approved in March a new classification of crimes related to pimping and sexual exploitation. It foresees persecuting the owners of the clubs that enrich themselves with the exercise of prostitution, which may be punished with prison terms of one to three years and the closure of the establishments. It is about including in the Penal Code the so-called ‘locative third party’, a figure that contemplated the legislation of 1973 and that was later eliminated. In addition, it reforms the crime of pimping with the aim of ending “impunity” for the non-coercive.