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28 February, 2023
In Spain, the Ministry of Equality that receives a significant economic endowment, devotes its efforts to enacting laws that intensify the storyline of women as eternal victims. With the new laws, it intends to regulate every last detail of relationships between equals and "trap" men whose only mistake is existing and trying to relate freely. If that were not enough, the introduction of the law is having disastrous consequences on criminal proceedings that were already closed.
With the implementation in Spain of the Organic Law of Integral Guarantee of Sexual Freedom, known as the "Only yes is yes" law, "consent will only be understood to exist when it has been freely manifested through acts that, in view of the circumstances of the case, clearly express the will of the person". All sexual conduct that falls outside this concept of "consent" will be considered aggression. The new law unifies what for the old law, from 1995, were two different criminal offenses:
· Sexual abuse: When there was no violence or intimidation. Minor convictions.
· Sexual assault: In cases of proven violence and intimidation. Major convictions.
As of October 6th, 2022, women are not required to prove violence or intimidation in the event of legal proceedings.
The entire law revolves around this concept of "consent", presented as something new, but which was already the basis of the legislation on crimes against sexual freedom. If there was no consent, the perpetrator was convicted for harassment, abuse or assault. End of story. The intention of the draft bill was to legislate on consent in the negative aspect, forcing the aggressor to prove whether or not there had been. Fortunately, experts concluded that this reversal of the burden of proof questioned the presumption of innocence and would have rendered the law unconstitutional.
One of the most relevant details is that the minimum penal rate is modified in some of the cases reflected in the text. For example, in a basic sexual assault, the maximum penalty would be reduced from 5 to 4 years. In group sexual assaults, the minimum penalty would drop from 12 years to 7. Bear in mind that the reason that provoked the need to reform these laws was the group assault of La Manada in 2016, and the protests over the first conviction faced by the defendants as the facts, were considered abuse and not rape. In short, what used to be "abuse" results in a longer prison term (based on the mistaken assumption that longer prison term equals "better law"), but "assaults" can be settled with lower penalties. And it is in this second case where controversy is nesting. The changes in the penalties cause, as indeed has occurred in the weeks following the enactment of the law, that when reviewing the sentences in which the lesser penalty was requested, the judges interpreted that they had to favor the defendant, applying the new criminal rates, below the original ones when relevant. At the time of writing this article, the number of benefited prisoners is close to 300: 262 sentence reductions and 27 aggressors on the street. Rapists who are once again at large because of a poorly designed law. The pain induced on the women who relive the tragedy they suffered and who face danger once again, can no longer be repaired.
Lawyer Mateo Bueno, specialized in Family and Criminal Law, recalls that the legislation draft received at least 22 unfavorable reports which highlighted its technical shortcomings and, wait for it... warned about the possible reduction of penalties; which indicates that the Ministry was fully aware of the danger involved. Bueno states that "when legislation is passed thinking more about ideologies than in the common interest; when legislation is passed without listening to anyone, we should not be surprised at what has happened".
Even Manuela Carmena, from whom we can expect a certain affection for the policies of the coalition in government, said in an interview granted in January to El País that not reforming the 'only yes is yes' law would be an act of "childish arrogance" and that "the BOE is full of corrections". The former mayoress of Madrid was adamant in stating that the blame for the reduction of sentences cannot be attributed to the judges, but to an "unintelligent" approach to the situation.
This explicit consent of which the law speaks, together with the loopholes that the system can generate given the margin for interpretation that it implies, can give rise to abusive situations. The text is a lethal weapon that could be easily used by malicious women, who really do exist. Leaving behind the model whereby the aim was to obtain guarantees in a dispute of this kind, based on proving that the victim had actively refused the relationship, another model is chosen in which it is essential to prove that the complainant wanted to have access to it. In the absence of this "yes", a conviction is processed on the basis of that catalogue including very different types to the one we mentioned at the beginning. This avoids having to go into detail about whether the victim screamed or was paralyzed, but it opens the door to the manipulation of completely normal situations that, through the mere desire of a woman, can turn dangerous for a man who has done absolutely nothing. What appears as a worthy end unleashes a series of perverse assumptions, which at a given moment we can even laugh at, but which always place the man in the firing line. Assumptions on which it is understood that the woman has an original innocence, and the man benefits from prevalence over the woman's will. A law based on the word of one person against the word of another, and which has no real means of proving whether it has been broken, is not an effective law, it is an unjust law, and again puts men at risk. This law only aims to increase the number of complaints and to dismantle the protection methods of the rule of law. This is not feminism: it is government control, inequality and lack of protection.
Irene Montero, the Minister of Equality herself, has dared to declare that "male chauvinism or machismo can cloud the impartiality and integrity of justice systems" and "can cause judges to apply the law erroneously or in a defective way". A person with such an important position, who holds such a level of power, attacking the legal system, who does nothing more than fulfill her obligation, for a ruined job for which she is the main person responsible. Legal insecurity for women and social finger-pointing for men. What a curious way of understanding what machismo is.