Spain passes “Only Yes Means Yes” sexual consent law
In August 2022, Spain adopted a new law to tighten the rules on street harassment, to improve education on the topic in schools and to protect victims of sexual violence more rigorously and consistently.
The law, referred to as the “Only Yes Means Yes” sexual consent law (“Solo si es si” in Spanish) was triggered by the gang rape of an 18-year-old woman in 2016 by five men at the annual bull-running festival in Pamplona, a long-lasting Spanish tradition. The perpetrators, known as the “wolf pack”, were initially convicted of the lesser offence of sexual abuse instead of rape because the judges at first instance interpreted the victim’s silence as consent. One of the judges even claimed that the only grounds on which they could successfully convict the perpetrators were that of stealing the victim’s phone to film the horrific scene. Three years later, the Supreme Court overturned the verdict and the men’s sentence was extended because they were found guilty of rape which carries a heavier sentence than sexual abuse, the crime of which they were initially convicted. The absurdity of the delay in appropriate conviction is worrying, for the victim as well as other women, if they were to fall victim to a similar fate.
Another recent case in Spain saw five men convicted of sexual abuse of a 14-year-old girl - instead of rape - because the victim was under the influence of drugs and alcohol to the point that she was unconscious and so was unable to fight back. This fact alone justified the lesser conviction of sexual abuse rather than rape, according to the judges. This is another terrifying example of Spain’s previous leniency with the law relating to rape and sexual abuse; the judges prefer to blame the victim’s intoxication rather than five men sexually abusing a young girl. This begs the question as to whether the judges would have been so lenient had the victim not been intoxicated. Would they have found another excuse to convict the perpetrators with a lesser sentence? What would have justified the heavier conviction of rape on the 14-year-old victim instead of sexual abuse?
These are just some examples contributing to the wider picture of the narrative of rape and sexual violence in Spain. Following these cases and a host of other horrendous attacks in the country and beyond, Spain initially decided to raise the age of sexual consent from 13 to 16 in 2015. In doing so, Spain hoped that this would reduce the number of rape and sexual violence crimes in the country because less people would be affected, and the parties involved might be better versed to give or refuse consent. However, this did not suffice so the country decided to adopt new measures.
Most recently, in August 2022, Spain passed a new law, reforming its own Criminal Code, to define “rape” as sex without clear consent. This definition was influenced by Sweden’s own 2018 law, which considered “rape” as any sex act without explicit consent. Indeed, the new Spanish law clearly states that: “consent is recognised only when a person has freely demonstrated it through actions which, in the context of the circumstances of the case, clearly express the person’s will”. As such, consent is now the key criteria to decide whether a sexual act was consented to or rather whether it constituted rape; “passivity and silence can no longer be interpreted as consent”. This is therefore a landmark evolution in the law because previous cases such as the “wolf pack” gang rape of 2016 would likely have been decided differently; indeed, given that silence is no longer interpreted as consent, the perpetrators would likely have been convicted of rape at first instance.
Spain’s Equality Minister, Irene Montero proudly announced in August 2022 : “at last, our country legally recognises that consent is what needs to be at the centre of all our relationships”. Spain is now considered as a pioneer “in the fight against violence against women after in 2004 approving Europe’s first law that specifically cracked down on domestic violence".
Spain’s step towards a tighter law on rape, harassment and sexual abuse has influenced other countries to take similar steps, for example France. Indeed, French senator Esther Benbassa recently proposed a new law requiring explicit consent for sex acts.
Although the law was only adopted several months ago and there is no clear vision as to how this will reduce rape and sexual violence crimes in Spain and other countries if they choose to adopt similar legislation, the evolution suggests that there is hope for the situation to improve and we will hopefully witness a significant improvement in the lower instances of rape and in higher conviction rates when rape does occur.
The adoption of such a law suggests that there is hope that tighter laws on the definition of consent and sexual acts or offences will protect victims of these attacks and ensure appropriate convictions and punishments for the perpetrators. Such a crackdown on the state of the law in Spain will likely influence other countries to adopt similar legislation as well as deter potential perpetrators from committing similar crimes in the future.
This new law also shines a spotlight on a more societal and ethical issue: that of the presumption that women are to be sexually available to men to meet their needs. Indeed, generally speaking, men ask for sex and women respond, in heterosexual contexts. According to Adriel Trott, “heteroseuxal cultures generally lead to women putting in the work of attempting to learn about men’s desires, whereas the converse is not expected of men”. The societal viewpoint of consent and the fact that the burden rests on women to be sexually available to men to fulfill their desires portrays once more the gendered and biased nature of our society in its attitudes towards gender roles and in particular, towards sex.
Inter alia, Susan Bredleau has recently quoted Simone de Beauvoir and reiterated that “affirmative sexuality will require that women unlearn submissive self-objectification in the bedroom, and that men unlearn an antagonistic form of sexual expressivity that takes women’s desires to be threatening because they compete with their own”.
As a result, although the “Only Yes Means Yes” new law in Spain will hopefully serve to sentence perpetrators of sexual violence crimes accurately and will identify rape on grounds of consent which should result in fairer findings following violent attacks on victims (who are more likely than not to be women), it seems that the crux of the issue is still based on archaic gender roles. There is a strong echo of the perception of women as beings who must be available to serve men and provide for their needs and desires at all times.
This law is a step in the right direction but further and urgent action is required to reduce the impacts of male dominance on women in areas such as sexual consent.
 Reuters Staff, Two members of Spain’s ‘Wolf Pack’ sentenced for filming gang-rape, <https://www.reuters.com/article/us-spain-women-idUSKBN1XU19S> Accessed on 21 October 2022.  Ibid.  Miriam Berger, They were accused of raping an unconscious 14-year-old. A court concluded it was abuse, because she didn’t fight back, <https://www.washingtonpost.com/world/2019/10/31/they-were-charged-with-raping-year-old-girl-spanish-court-ruled-it-was-only-sexual-abuse-she-was-unconscious-didnt-fight-back/> Accessed on 21 October 2022.  Age of consent in Spain <https://www.ageofconsent.net/world/spain#:~:text=What%20is%20the%20Spain%20Age,to%20participation%20in%20sexual%20activity.> Accessed on 21 October 2022.  Chapter 6 of the Swedish Penal Code.  Le Monde with APF, Spain passes toughened ‘Only Yes Means Yes’ rape law <https://www.lemonde.fr/en/international/article/2022/08/26/spain-passes-toughened-only-yes-means-yes-rape-law_5994803_4.html#:~:text=Known%20as%20the%20%22Only%20yes,as%20sex%20without%20clear%20consent> Accessed on 21 October 2022.  Stephen Burgen, Spain passes ‘only yes means yes’ sexual consent law, <https://www.theguardian.com/world/2022/aug/25/spain-only-yes-means-yes-sexual-consent-bill-expected-to-become-law> Accessed on 21 October 2022.  Le Monde with APF, Spain passes toughened ‘Only Yes Means Yes’ rape law <https://www.lemonde.fr/en/international/article/2022/08/26/spain-passes-toughened-only-yes-means-yes-rape-law_5994803_4.html#:~:text=Known%20as%20the%20%22Only%20yes,as%20sex%20without%20clear%20consent> Accessed on 21 October 2022.  Ibid.  Linda Martin Alcoff, Rape and Resistance, May 2018.  Adriel M. Trott, Women in Philosophy: The Limits of Consent in Sexual Ethics, April 2019.  Susan Bredleau, The Other in Perception, A Phenomenological Account of our Experience of Other Persons, November 2018.