A UN expert today expressed concern that the adoption of a new law on sexual consent in Spain has effectively reduced the length of sentences handed down to perpetrators of violence against women.
“While the clock cannot be turned back, it is now crucial that the Spanish Government and its institutions monitor the real impact of the early release of perpetrators of violence on the lives of victims, seek to minimise revictimisation and ensure their protection,” said Reem Al Salem, the UN Special Rapporteur on violence against women and girls.
According to the General Council of the Judiciary, as of 12 April 2023, 943 out of 4,000 perpetrators of sexual violence serving prison sentences have had their sentences reduced following the adoption of the Organic Law for Comprehensive Guarantees of Sexual Freedom, also known as the Sexual Consent Law or the “Only Yes is Yes” Law.
The expert noted that the Prime Minister of Spain publicly apologised to victims in April for the unintended impact of the new law, which is commendable. She also noted that the revision of the Organic Law of 27 April 2023 reinstated the levels of punishment for sexual and gender-based crimes against women and children that existed in the Criminal Code before the new law was introduced.
“The negative consequences have unfortunately eclipsed many positive aspects of the sexual consent law, which include preventive measures to combat sexual violence; recognition of victims’ rights and facilitation of their access to resources; emphasis on the State’s obligation to provide legal and medical assistance; and guarantees of the victims’ right to reparations,” Al Salem said.
She was concerned that the law had not been accompanied by resources to ensure its proper implementation. An estimated one third of victims of sexual violence in Spain did not receive any compensation for the violence they had suffered. Around half of the victims did not receive any compensation provided for in sentences imposed by the courts on their abusers.
“Using the threshold of whether consent was given or not as the burden of proof becomes meaningless in many situations and can lead to the burden of proof falling on victims rather than perpetrators,” the Special Rapporteur said, citing cases of trafficking in women for sexual exploitation and abuse, and exploitation in prostitution and pornography.
The expert recommended that the law should include a clearer description of the word “gender” that is more in line with international human rights standards, and a clearer distinction in the law between the terms, “sex” and “gender”.
“For a country with a high rate of femicide, reducing the sentences of those found guilty of perpetrating sexual violence – against women and children – sends the wrong message about the State’s priorities when it comes to ending violence against women and children and fighting impunity for such crimes,” Al Salem said.
The unfortunate consequence of the law could have been avoided if more attention had been paid to the voices of different stakeholders who had warned against this obstructive consequence, such as those expressed by civil society organisations, politicians and the General Council of the Judiciary, the expert said.
“Given the importance of the law and its far-reaching implications for victims of sexual violence, more time should have been allowed for consultations on the draft law, rather than rushing it through,” the Special Rapporteur said.
