It is clear to no one that the legal reform carried out by LO 10/2022, of 6 September, on the comprehensive guarantee of sexual freedom – the misnamed “only yes is yes” law – has been an absolute failure.
And it was obvious that this was going to be the case. The reform promoted by the Ministry of Equality abandoned the most basic criteria of legal technique, and replaced them, not only with ideological criteria -something that, in its proper measure, and if combined with good legislative technique, could be legitimate-, but also with a series of advertising slogans that did not reflect reality.
The main mistake of the Ministry of Equality was to unify the former crimes of sexual abuse and assault into a single criminal offence, disregarding the principle of proportionality of penalties (punishing the most serious acts with a higher penalty, and the lesser acts with a lower penalty), which should govern all criminal law.
In order to respect the principle of proportionality, our criminal system has been distinguishing conducts that, despite infringing the same legal right, are of different gravity and therefore deserve different reproach. For example, to punish those who seize other people’s property, a distinction is made between theft and robbery, reserving robbery for those who act with violence, intimidation or force. Similarly, to punish those who kill a person, a distinction is made between homicide and murder, reserving murder for those who act with malice aforethought or malice aforethought, together with other circumstances.
The same model was followed in the regulation of crimes against sexual freedom. In the 1995 Code – and in previous ones – any sexual act carried out without the consent of the other person was punished, but a distinction was made between abuse or aggression, reserving sexual aggression for those who used violence or intimidation against the victim. In addition, various circumstances were taken into account – whether or not there was penetration, whether the victim was vulnerable, etc. – in order to determine the degree of punishment. It does not seem logical to punish in the same way a bus hustler as someone who drags a woman to a doorway at knifepoint and beats her before raping her.
This was the case until the law replaced the principle of proportionality with a banner slogan (the “it’s not abuse, it’s rape” that triumphed in some demonstrations), decided to do away with the demonised term “sexual abuse”, and unified both crimes – the former abuse and assault – into one. It no longer mattered whether the acts had been committed with violence or intimidation. The new offence, moreover, would have a very wide range of penalties, with the minimum penalty tending to coincide with that of the former abuse, and the maximum penalty approaching that of the former assault.
The consequence of the above – surprising for some, but expected for those who have read the law carefully – has been the downward revision of more than 400 convictions for sexual crimes, and those that remain. Revisions that, moreover, affect above all the most serious offences: convicts convicted of the old sexual assault – that is, those who acted with violence or intimidation – who benefit from the fact that the new minimum penalty for the unified offence is that of the old sexual abuse. As the law does not care about violence or intimidation, these offenders have their sentence replaced by the sentence they would have received if they had committed a lesser offence, without violence or intimidation.
Faced with this situation, and the social alarm created, the socialist group has presented a new organic bill to modify the law of only yes is yes.
The organic bill maintains the denomination of all crimes against sexual freedom, which will continue to be called aggression, but introduces subtypes to once again punish with greater penalties those conducts that include violence or intimidation.
We could say that this is a covert return to the previous system, albeit with some shortcomings. Although the bill continues to call everything aggression, and maintains the elimination of the word abuse, it again distinguishes between acts that have been committed with violence or intimidation and those that have not, in order to punish the most serious acts with a heavier penalty.
To this end, the new bill introduces a subtype that punishes those conducts that the 1995 Code called sexual aggression – those that included violence or intimidation – with exactly the same penalty that they had before the law of only yes is yes.
For example, sexual assault with aggravating circumstances and penetration, which the 1995 Code punished with a range of twelve to fifteen years, and which the only yes is yes law reduced to between seven and fifteen years to unify it with abuse, the bill restores the range of twelve to fifteen years.
The result is a return to the previous system: a range for conduct involving violence and intimidation and a lighter range for conduct without violence or intimidation.
But this counter-reform also suffers from some technical problems that should be solved during its parliamentary processing. While assaults with violence or intimidation are once again punished with exactly the same range of penalties as before the ‘yes is yes’ law – which is a good thing as it restores proportionality to the system of penalties – the bill does not touch the penalties for assaults without violence or intimidation – the former abuses – which maintain those of the unified offence of the ‘yes is yes’ law.
In other words, in the case of non-violent and non-intimidating conduct, the bill maintains the ranges of the unified offence created by the “only yes is yes” law, despite the fact that these more extensive ranges were designed for an offence that also covered assaults with violence or intimidation.
For example, the only yes is yes law foresaw a sentence of four to twelve years for sexual assault with penetration, regardless of whether or not there was violence or intimidation. The bill solves this by adding a subtype so that, when there is violence or intimidation, these assaults with penetration are punished as before the “only yes is yes” law: six to twelve years. But the range of four to twelve years is maintained for assaults with penetration without violence or intimidation, instead of returning to the previous regulation (four to ten years). It does not make sense that from now on this conduct will have the same maximum limit regardless of whether or not there is violence or intimidation.
It would be more reasonable – and above all more proportional – to return to assaults without violence or intimidation the penalties of the old abuse. Only in this way would the return to proportionality be complete. It would be a good thing if this issue were to be addressed in the parliamentary process.
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Of course, the draft organic law does not touch on consent (the criticisms on this issue by the minority sector of the government do not correspond to reality), nor did the 1995 law, nor the 1995 penal code, nor the previous ones. Consent has been at the centre of the regulation of these crimes for more than a century, as evidenced by the fact that already in the 1995 Penal Code these crimes are called “crimes against sexual freedom”.
The supposed intention of the Ministry of Equality to “put consent at the centre” – with its recent cheesy version of “keeping consent at the heart (sic) of the law” – is nothing more than a slogan that has nothing to do with reality.
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Finally, it is only fair to recognise the only real progress that we can attribute to these successive reforms: the consideration – rightly introduced by the law only yes is yes, and maintained by this new bill – of chemical submission as aggression with violence or intimidation (in the 1995 Code it was considered abuse). In the end, when this legislative nonsense is over, this will be the only technical improvement with respect to the previous regulation of these crimes.