January 25, 2021

without “express will” of the victim there is no consent

The Organic Law of Integral Guarantee of Sexual Freedom, whose draft will be approved by the Council of Ministers this Tuesday, includes an explicit reference to how consent should be understood in a sexual act, according to sources of the Ministry of Equality. That is to say, the classic ‘only yes is yes’ appears in the articles of the reform of the Criminal Code that this new norm implies, which understands that there is no consent when the victim “has not freely manifested by conclusive and unequivocal external acts, as to the concurrent circumstances, his express will to participate in the act “.

The objective of the criminal part of the text, which has undergone changes in the last week following the objections and contributions made by other ministries – such as that of Justice -, until this last Monday, is to adapt to the Istanbul Convention, which obliges that the regulation of sexual crimes is based on consent and not on other elements. Currently, for sexual assault, violence and intimidation are required, while if these requirements are not met, the fact is considered abuse. The new law ends with this difference, so that any act without consent will be considered sexual assault.

The controversy jumped after the case of ‘the pack’, which the Provincial Court of Navarra condemned for sexual abuse and subsequently the Supreme Court for sexual assault. The case opened the debate on the criminalization of sexual crimes, to the point that in July 2018 the then vice president and minister of Equality, Carmen Calvo, He announced that “only yes is yes” would inspire future reform.

This ‘only yes is yes’ is a popular expression that precisely the Supreme made his own in the case of Pamplona. The ruling assumed the definition of consent made by the Istanbul Convention that revolves around the expression of the will to have sex: if there is no such, there is no consent. That is, the absence of a “no” (not moving, not acting or not saying so) does not amount to consent. The idea is to change the paradigm: instead of demonstrating that there was no “no” on the part of the victim, which gives rise to interpretations based on the fact that if there is no resistance, there is consent, the absence of a “yes” must be demonstrated. “in its broad sense.

“The specific reference made in the Istanbul Convention to consent, as a manifestation of the free will of the person depending on the context, makes clear the impossibility of interpreting an absence of physical resistance as such will, it must be expressed expressly or clearly deduced from the circumstances surrounding the event, “said the Supreme. That is, the consent must be express. If it is not, it is a negative.

This reference to consent has been incorporated into the text of sexual freedom in recent weeks, as it did not appear in the draft of the norm prepared by the Ministry of Equality and to which eldiario.es had access. The Council of Ministers will approve the draft on Tuesday, just in the week of 8M and after several discrepancies arisen within the Executive, among them, when to present the reform of sexual crimes: if with the comprehensive review of the Criminal Code, which will treat crimes such as sedition, as preferred by the Ministry of Justice and the Vice Presidency of Carmen Calvo or in this law, as defended equality.

An integral law

The preliminary draft also indicates that sexual acts will be considered all acts of sexual content that are carried out “using violence, intimidation or abuse of a situation of superiority or vulnerability of the victim, or acting in a surprising manner, as well as those that are executed about people who are deprived of meaning or whose mental situation is abused and those who are carried out when the victim has annulled his will for any reason. ” That is, it includes assumptions, such as the latter, that in the current Criminal Code are considered sexual abuse.

As for the penalties, Equality has proposed a decrease of some (among them, those of the criminal type of violation) and an increase of others, as can be seen from the draft prepared by the department directed by Irene Montero. Among other things, it incorporates novel aggravating factors such as the aggressor being the partner or ex-partner or the use of drugs to nullify the will of the victim. However, we must wait to know the final text, which is being polished with contributions from other ministries, mainly Justice.

PSOE and United We can included in the agreement of the Coalition Government this modification under the heading of “shielding only yes is yes” and as part of the law that will be approved on Tuesday by the Council of Ministers. The norm is based on the proposed law registered by the purple formation in Congress in 2018 and not only incorporates the reform of the Criminal Code, but it is a comprehensive law that deploys a range of prevention, care and reparation measures for victims . It does so in the style of the system that already exists for victims of gender violence within the couple or ex-partner, and its objective is that social, legal and legislative, sexual violence is considered a form of sexist violence.

The Equality draft proposes, among other things, that the courts specializing in gender-based violence be responsible for the crimes of sexual assault; the training of all the operators included in the process (judges, prosecutors or forensics) and the creation of a network of care centers, both emergency (open 24 hours) and long-term, with the objective that the victims be treated Psychologically and recover.


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