Why is Spain’s landmark rape law letting offenders off the hook

With much hype and fanfare, Spain’s progressive coalition government enacted a groundbreaking law last August to bolster legal protections for sexual assault victims.

However, less than a year later, Prime Minister Pedro Sanchez has described it as his administration’s single “biggest mistake,” particularly because of a technical error and its unintended consequences.

The law is posing another challenge for Sanchez by driving an untimely wedge among the ruling coalition ahead of the July 23 elections.

The “Only Yes is Yes” law was underpinned by the need for clear and unequivocal sexual consent. A victim’s silence or lack of resistance, according to the new law, could not be construed as a green light.

It also removed the prior distinction separating sexual abuse and sexual aggression.

Under the new law, women would no longer “have to prove that violence or intimidation was used,” Equality Minister Irene Montero said when the bill was passed, hailing it as a victory after years of struggle.

The law’s genesis was rooted in a notorious 2016 rape case involving five men who called themselves the “Wolf Pack.”

During the famous bull-running festival in Pamplona, the men gang-raped an 18-year-old woman. Their trial sparked outrage when defense lawyers used videos showing the survivor immobile and her eyes closed to argue she was consenting.

A court gave its verdict in 2018, finding the men not guilty of sexual aggression, but instead of the lesser crime of sexual abuse, and sentenced them to nine years in prison.

Protesters filled the streets throughout Spain, infuriated that the perpetrators did not get the maximum sentence.

After an appeal, the Supreme Court sided with the survivor in 2019, reclassifying the crime as rape and sentencing the convicts to 15 years in prison each.

Still, though, both activist groups and Spain’s progressive coalition government felt the laws on rape and sexual assault needed amending, vowing to push ahead with a comprehensive reform that eventually materialized last year.

According to the coalition partners Socialist Party and the far-left Unidas Podemos (UP), the idea was to “reform the criminal code … in a way that if a woman doesn’t say yes, everything else means no.”

Opposite effect

The law passed despite warnings from the country’s main judicial group, was broadly lauded by feminist groups and the Spanish government.

After it took effect, however, many were horrified to see convicted offenders successfully use a loophole in the sentencing guidelines to get their punishments reduced.

From the time the law was passed until July 1 this year, a total of 1,155 sex offenders have used it to reduce their sentences, while another 117 have been released from prison.

“This happened because non-experts wrote the law. There was this almost obsessive idea to unite all sexual crimes into one category … and technically, it was extremely difficult to pull off,” Elena Inigo Corroza, a law professor at the University of Navarra, told Anadolu Agency. 

“They had been warned about this in writing. It was completely predictable. But I think the Ministry of Equality minimized it, thinking what they’d gain was much more important than the price to be paid.”

At first, Equality Minister Montero attributed the reductions to “misogynistic judges,” but it soon became evident that they were an unintended consequence of loopholes in the legislation itself.

Splitting the left

Politicians scrambled to fix the situation, with the Socialists admitting there had been a mistake.

They passed changes to the law in March, supported by right-wing parties but not their own junior coalition partner UP, marking the first time the coalition split its vote.

The fallout is influencing the run-up to this month’s national elections.

In a recent interview with broadcaster La Sexta, Sanchez referred to the oversight leading to sentence reductions as his government’s “biggest mistake.”

Meanwhile, Montero and the UP are not even contesting the elections. The party has been replaced by the far-left Sumar and its leader Yolanda Diaz, who has criticized the law.

Spain’s Equality Ministry did not respond to Anadolu’s request for comment.

The law has also caused a rift within Spain’s feminist movement, which was particularly united in protests over the “Wolf Pack” case.

“If the law lets sexual criminals out of jail or reduces their sentences, it’s not a feminist law, and it doesn’t protect women’s rights,” tweeted the feminist Alliance CBM.

Blanca Estrella Ruiz, national president of the feminist group Clara Campoamor, termed the situation “reproachable,” sharing the experiences of women whose attackers have seen their sentences reduced.

“It cost them so much to report the crimes, and now, after a few years, the men are back on the streets. The women are terrified,” Ruiz said.

However, more than 200 feminist groups signed a manifesto supporting the original law.

“Increasing sentences doesn’t protect us, and it’s never protected us,” the groups said in a joint statement, arguing that the Socialists’ reform was about changing the bill’s core.

“Consent is an affirmative expression that’s conscious, voluntary, and reversible. If it’s not there, there’s sexual aggression.”

Debate and uncertainty

Besides the unintended leeway for offenders, members of Spain’s judicial community openly question the heart of the concept.

Law professor Inigo Corroza argues the original law oversimplified sexual relations and unfairly inverted the burden of proof onto the accused.

“Even if you have a recording of a woman saying yes, she could have changed her mind at the last minute. Consent becomes virtually impossible to prove,” she said.

Though the law was passed last year, how it is playing out in new sentences is still unclear.

Corroza said there has not been enough time for new cases to reach unappealable judgments. Plus, the reform of the new legislation in March restored parts of the previous criminal law, including bringing back the idea of proving violence or intimidation as factors that could increase sentences.

“I think this was a terrible response to the ‘Wolf Pack’ trial … Of course, some bad judges might ask victims inappropriate questions … but if a judge is revictimizing someone, that judge should be investigated,” she added.

Other legal experts, politicians, and activists argue the law was generally positive, despite its “undesired effects.”

“I’ve always defended that it was a good law that protects women because it recognizes the need for specialized care for female victims of sexual assault,” Sanchez said in an interview last week.

At the same time, the backlash against the law has emerged as one of the key electoral issues.

In May, the Socialists and UP saw major losses in local and regional elections, while the conservative Popular Party emerged victorious and the far-right Vox consolidated its presence in governments around the country.

Ahead of the general elections, some polls suggest right-wing support may be fading compared to the local elections.

Others, however, indicate that Spain’s “most progressive government” in its modern democratic history could soon give way to the country’s “most far-right” one since the Francoist dictatorship of the mid-20th century, in the form of a coalition of the Popular Party and Vox.

In July, Popular Party candidate Alberto Nunez Feijoo, who polls suggest will receive the most votes, said he would conduct “an integral reform” of the “Only Yes is Yes” law if elected.

Meanwhile, Vox leader Santiago Abascal, speaking from the Canary Islands in June, called the law “disgusting” and “created by crazy women,” adding to the uncertainty around the future of the landmark legislation.?