The Government plans to approve the Organic Law of Comprehensive Guarantee of Sexual Freedom, the so-called law of the only yes is yes’, more than a year after the approval of the Council of Ministers, in March 2020. One week after giving the green light to the draft of the ‘trans law’, the Ministry of Equality will take another of his star measures and that also unleashed a tough dispute within the Executive. It will thus continue its journey in Congress and the Senate, which according to calculations by the department led by Irene Montero, the “foreseeable” is that they will begin their debate around the turn of the summer, in September, after a process that has accumulated several delays.
The ‘only yes is yes’ law is extended to child victims of sexual crimes and creates comprehensive centers to prevent them from going to the police station or court
The law establishes measures of prevention, care and reparation for victims of sexual violence, in the style of the system that already exists for those of gender violence within a partner or ex-partner, and reforms the Penal Code to end the distinction between assault and sexual abuse . This is the cornerstone of the rule, harshly criticized by the General Council of the Judiciary (CGPJ) and driven by social protests and the debate that sparked the case of ‘the herd’. According to Equality, this change will make Spain join “the vanguard of women’s rights in Europe with a clear feminist and human rights perspective.”
The objective is that, as more and more countries have done, conforms to the Istanbul Convention, which requires that the regulation of sexual crimes is based on consent and not on other elements. Currently, for there to be sexual assault violence or intimidation is required, and if they are not given, it will be sexual abuse. The law, which Equality and Justice have worked on, ends with this difference, so that any act without consent will be considered sexual assault. The idea is to avoid being considered abuse a violation in which there is no explicit violence or intimidation, but there is an environmental one, as happened in the first two sentences of ‘la manda’, which sparked massive protests under the slogan “it is not abuse, is rape “or” I do believe you. ”
In what has confirmed Equality modifications is in the definition of consent, which was also evaluated by the advisory bodies. While for the CGPJ it was “unnecessary” and “problematic”, the Fiscal Council proposed a change in line with the new wording. It will be a definition “in positive” instead of based on negations, as has happened until now. In this sense, it goes from understanding that “there is no consent when the victim has not freely expressed through external, conclusive and unequivocal acts, in accordance with the concurrent circumstances, his express will to participate in the act.” To “only” understand “that there is consent when it has been freely manifested through acts that, in view of the circumstances of the case, clearly express the will of the person “.
The processing of this law has not been without controversy. It has already started its process amid the discrepancies within the Executive, between the Ministry of Equality and the first vice-presidency of Carmen Calvo, and got the green light from the Council of Ministers in extremis, at the gates of 8M. Proof of this was that the final text was subject to last minute changes and was not closed until shortly before its approval. After that, the ministries continued working and in October the law completed its public consultation process, following the allegations of some 60 organizations. It was then that it was sent to the advisory bodies, a process that once again lengthened the process after the delays of the General Council of the Judiciary in issuing its report.
In this time Justice and Equality incorporated modifications to the text, among them the extension of its object of application to the victims of underage sexual violence, as well as the creation of specialized services adapted to their needs in all areas. The figure of the ‘locative third party’ was also added, which implies persecuting the owners of the clubs that enrich themselves with the exercise of prostitution, which may be punished with jail terms of one to three years and the closure of the establishments . In addition, it reforms the crime of pimping with the aim of ending “impunity” for the non-coercive.
A comprehensive framework
The assessment of the advisory bodies has not been homogeneous: it received harsh criticism from the CGPJ, which questioned the most key aspects, such as the absorption of abuses in sexual assault. The agency considered that this could incur “lack of protection” for the victims and proposed an aggravated type of sexual assault when violence and intimidation concur. For their part, the Council of State and the Fiscal Council made favorable reports.
The law includes a catalog of specific aggravating factors, including that the events are accompanied by “extremely serious violence”, that it is a group aggression, or the use of drugs to override the will of the victim, among others. What at the moment they do not detail from Equality is the final articulation of the crimes and if any modification has been made with regard to the penalties. In the initially approved draft, some suffered a decrease, although in other cases, by unifying the crime of aggression and abuse, in practice they implied a greater punishment than the current Penal Code, for example when the victim is unconscious.
In this sense, the department headed by Irene Montero assures that it has opted for “a progressive penological system proportional to severity, with broader ranges”, which in its opinion “will allow an adequate criminal response to the multiplicity of circumstances. “.
The norm establishes a comprehensive framework of care for victims of sexual violence, in the style of what the 2004 law did with the Comprehensive Law against Gender Violence. It includes awareness-raising measures in the social and educational field, specialized training for all agents involved in these procedures or the implementation of 24-hour so-called ‘crisis centers’ to assist victims regardless of whether they report or not and for whose implementation underway, the Government has already enabled credits for the communities. Measures are incorporated to avoid the re-victimization of women who report sexual violence, including the possibility of avoiding eye contact with the alleged aggressor or to testify in special rooms.