If someone uses violence or intimidation, it is immediately assumed that a sexual relationship is not consensual. This is the central foundation of the reform of Spain's 'Only yes means yes' law on sexual rights that senior governing party the PSOE wants to introduce - with its all-important affirmation that consent is maintained at the centre of the law. In this way, the Socialists intend to put pressure on their junior government partner Unidas Podemos, sponsor of the original law, which asserts that with the changes that the PSOE is seeking, consent will no longer be at the heart of the legislation, and victims will be forces to go through a "ordeal of proof" in any prosecution for sexual assault.
Sources from the Spanish justice ministry, where the new bill has been drafted, maintain that the supposed "ordeal of proof" exists in any type of trial, no matter how unpleasant it may be for the victims, and that it has always had to be shown that a defendant has used violence or intimidation to commit a crime. Thus, despite not going back to the previous Penal Code, the Socialist proposal is committed to recovering the previous penalties and increasing them by between one and two years when there has been violence or intimidation.
In fact, these same sources maintain that "what changes people's lives are the laws and not the narratives", since they consider that Podemos "has blurred the problem" and sent confusing messages asserting that it is no longer necessary to prove that there had been violence in a trial to believe the victim, and that everything revolved around whether there had been consent or not. "The increase in the sentences is a political decision, and in that you have to be brave and determined," these same sources point out, maintaining that the only problem with the law was the change that led to the reduction of sentences.
At present, the PSOE argues, depending on how the law is intepreted, sexual assault on a woman could be punished with lower penalties than robbery. Thus, the justice ministry, through the Socialist parliamentary group in Congress, has presented a text that further limits the interpretation of the judges. In addition, they maintain that adding to the amended law the provision for violence or intimidation to be treated as aggravating factors - the change that Podemos had argued for - caused the penalties to skyrocket and thus introduced a punitive approach.
The details of the PSOE's proposal
Currently, under the changes brought about by the 'Only yes means yes' law, Article 178 of the Spanish Penal Code reads as follows: "Whoever performs any act that violates the sexual freedom of another person without their consent will be punished with a prison sentence of one to four years, as responsible for sexual assault. It will only be understood that there is consent when it has been freely expressed through acts that, in view of the circumstances of the case, clearly express the will of the person." The Socialists are committed to modifying this article, increasing the maximum penalty by one year (from 1 to 5, instead of 1 to 4) "if the aggression is committed using violence or intimidation or on a victim whose will has been annulled for any reason".
In Article 179, the range of penalties is also to increase in the PSOE proposal. Currently it reads: "When the sexual assault consists of carnal access through the vaginal, anal or oral route, or the introduction of bodily members or objects through one of the first two routes, the person responsible will be punished as a prisoner of rape with a prison sentence of four to 12 years." Instead of these penalties, the minimum will now rise so that the range becomes six to 12 years.
The PSOE also calls for higher penalties in those cases in which the assault has been committed in a group, particularly blatant violence or weapons have been used, or there is a family relationship between the victim and the aggressor. Thus Article 180 is modified so that, when there has been an assault without consent, with violence or intimidation, the penalties can be further raised to an 'aggravated' level if there are circumstances that could make the crime more serious, with penalties that would range from five to ten years in prison. And if the assault is accompanied by penetration and there are aggravating factors, the sentence could be between 12 and 15 years.