The 'only yes means yes' law turns one year old: from "victory day" to reform with divided government partners

There have been at least 1,205 sentence reductions and 121 releases

   MADRID, 6 Oct. (EUROPA PRESS) -

The Law to Guarantee Sexual Freedom, better known as the Law of 'only yes means yes', marks one year this Saturday, October 7, since its entry into force, although part of the text has already been reformed since April of this same year, after of the controversy generated after the reductions and releases of sexual offenders due to the application of the norm and the division generated between government partners.

The 'only yes means yes' Law was definitively approved in Congress on August 25, 2022, and the Minister of Equality, Irene Montero, exclaimed that it was "a day for victory after many years of struggle." However, controversy did not take long to appear when, after its entry into force in October, the first reductions in sentences and releases began to be known in application of a rule that was more favorable in certain cases for prisoners.

According to the latest data provided by the General Council of the Judiciary (CGPJ), corresponding to September 18, there have been 1,205 sentence reductions and 121 releases due to the 'yes means yes law'.

At first, the Government as a whole came out to defend the norm. "We are going to wait and see," said the President of the Government, Pedro Sánchez, who assured that it was a "cutting-edge law." However, in January the Executive announced its reform, without the agreement of Podemos. Shortly after, Sánchez assured that the change was "common sense" and, already in the campaign in June 2023, the head of the Executive recognized that the rule had been "the biggest mistake" of his Government.

Finally, the PSOE presented a proposal to reform the Law that the Senate definitively approved with the votes in favor of PSOE, PP and PNV and the rejection of Podemos.

The Minister of Equality, Irene Montero, acknowledged that the approval of the modification in Congress had become "a sad day, the most difficult day." Montero defended the initial drafting of the text and especially the need to put consent at the center of the norm, but recently, she recognized the "blunder" and attributed it to the Ministry of Justice.

Montero continues as acting Minister of Equality, although she was not included in the SUMAR lists for Congress in the last general elections. For her part, Podemos has demanded that she continue as head of the portfolio although the intention of the PSOE is to recover this ministry.

Meanwhile, the Criminal Chamber of the Supreme Court (TS) endorsed in June the penalty reductions applied in the reviews of final sentences after the entry into force of the 'only yes means yes' law, which also meant discrediting the criterion set by the State Attorney General, Álvaro García Ortiz, after a two-day monographic plenary session. The fifteen judges of the Second Chamber, including its president Manuel Marchena, thus confirmed the criterion applied by the vast majority by the provincial audiences.

The reform of the Law of 'only yes means yes' modifies the range of penalties for sexual assault with violence and intimidation so that this crime increases its punishment by up to two years in prison, with respect to the text of the norm promoted by the Ministry of Equality.

This is because this text returns to the range of penalties, from one to five years, that were included for sexual assaults in the Penal Code in 2010, the last reform that this norm underwent before changing again with the Law of the 'only yes means yes' currently in force.

In this way, the wording of the first two points drafted by Equality, which indicate that "it will only be understood that there is consent when it has been freely expressed through acts that, taking into account the circumstances of the case, clearly express the will of the person" and that "sexual assault is in all cases considered to be acts of sexual content that are carried out using violence, intimidation or abuse of a situation of superiority or vulnerability of the victim, as well as those that are carried out on people who are deprived of meaning or whose mental situation is abused and those that are carried out when the victim has been annulled for any reason", remain as they are.

But a new third point is included to state that "if the attack has been committed using violence or intimidation or on a victim whose will has been annulled for any reason, the person responsible will be punished with one to five years in prison."

In this sense, article 179 is also modified. If the Law of 'only yes means yes' includes a sentence of four to twelve years for assaults with penetration (rape), the reform adds that in the event that this rape includes violence and intimidation, this range of sentences is 6 to 12 years, as in 2010.

In the case of aggravating circumstances, the modification also returns to the Penal Code prior to the 'only yes means yes' Law, although adapting to the proposal it now makes when distinguishing sexual assaults with or without violence. Thus, the Equality ranges are included - from 2 to 8 years and from 7 to 15 years, in cases of sexual assault with or without penetration, respectively - and recovers the ranges existing in the Penal Code prior to 'only yes yes', from 5 to 10 years and from 12 to 15 years, for the new subtypes that it now proposes: sexual assaults with violence, with or without penetration.

Likewise, several transitional provisions are added in which it is assumed that the rule will be applicable to crimes committed before its entry into force if it is more favorable for the defendant and that the penalties that would correspond to the act prosecuted with will be taken into account. the application of the complete rules of the Penal Code prior to the reform and those established with it and the possibility of imposing security measures. In any case, it establishes that the defendant will be heard.

In addition, the new text determines that the General Council of the Judiciary (CGPJ) may assign the review of final sentences to one or more Criminal Courts or sections of the Provincial Courts and that the sentence that is being served will be reviewed. effectively the penalty by applying the most favorable provision considered exhaustively and "not by the exercise of judicial discretion."

The reform also includes an article that corrects the law's mistaken decrimination of the distribution or public dissemination through the Internet, telephone or any other information or communication technology of content specifically intended to promote, incite or encourage the commission of sexual assault crimes when it involves minors under 16 years of age.

In addition, it recovers the responsibility of the legal entity in cases of degrading treatment, workplace harassment or real estate harassment, among other wording changes that have also been applied during the processing.

On the other hand, it includes the correction of the wording of article 132 of the Law against violence in children, known as 'Rhodes Law', where crimes against the freedom of minors are cited twice with two different time periods of prescription. After the approval of this reform, this error is resolved by specifying that, in the case of "crimes against sexual freedom" when the victim is a person under 18 years of age, the limitation period will begin to count from the moment in which the victim reaches "35 years of age and, if he or she dies before reaching this age, from the date of death."