a law that raises many questions

The new ‘only yes is yes’ law

23 / Nov

On 7 October, Organic Law 10/2022 on the full guarantee of sexual freedom came into force. Officially the law is called ‘Ley Orgánica de Garantía Intégral de la Libertad Sexual’, but it is popularly called ‘solo sí es sí’ law. This law was recently approved by vote in the Spanish Congress of Deputies, but has generated a lot of commotion, discussion and conflicting opinions.

Will this law have a positive impact in the fight against the abuse of women?

The fight against the high level of sexual violence against women has led to a law that aims to guarantee sexual freedom. However, on the other hand, could it lead also to a violation of gender equality or attack the guiding principle of the criminal justice system: the presumption of innocence….

This law contains some provisions that, in our opinion, could be disproportionate and undermine the objective pursued by the legislator.What about:

Consent of the victim? The law states that there must be a positive and explicit affirmation, not being possible passivity or inactivity in the victim’s conduct.

“It will only be understood that there is consent when it has been freely manifested through acts that, in attention to the circumstances of the case, clearly express the will of the person.”

The above means a reversal of the burden of proof, as the lack of consent is presumed and therefore the victim’s willingness to engage in sexual acts must be proved. This is and remains a problem of proof and poses an onerous task for the alleged rapist.

There is a tendency to blame the “rapist” before starting the investigation, and with these new provisions in the law, it is a presumption of fact that needs to be disproven, and not a presumption of innocence.

Equality before the law? Or rather, does the woman’s word prevail over the man’s? Is the aim to protect women’s rights or to attack men? All of these questions are simply a reasonable doubt as to what lies at the heart of this social debate.

No more distinction between sexual abuse and sexual assault? Any sexual interaction without the consent of the other person now counts as rape and will be punishable by imprisonment. So what about proportionality of punishment? There is no such thing, because whether violence was used or not, the case will be treated equally. Only the use of very serious violence will be treated differently. On the contrary, this could result in a lack of protection for the victim, since for the perpetrator of the crime, the use of force when committing such a crime will no longer have major consequences.

These are some issues to reflect on with the entry into force of this new law, without prejudice to other aspects of the law that could be discussed, such as the sanctions for street harassment, or the cases of fraud that may arise to obtain the financial support that the law offers to the victims of such crimes.

Rather than taking a position, this article seeks to reflect on the changes introduced by the law and whether these will have a positive impact or whether these will violate the rights of the other gender and the principles of an established legal system.

The impact of this new law will have to be seen, although the first cracks are already visible; prisoners for rape are asking for sentence reductions and there are still false accusations that the state is trying to hide so as not to expose the shortcomings of this law….

However, sexual violence is a huge problem for which there is no easy solution. But it is clear that political propaganda is not a good weapon to solve this social abuse. Perhaps more legal competence and less propagandistic thinking would be the key to at least try to reduce the number of such crimes.

Camila Lizarazo González

Mª Dolores García Santos