The feminist motto “Only yes is yes” takes its most important step this Thursday to become law. The Congress of Deputies has backed by a large majority the flagship project of the Minister for Equality, Irene Montero, which now only has the formal passage through the Senate to be definitively approved and enter into force.
The so-called law of the only yes is yes, for being inspired by the proclamations of the feminist mobilizations that took to the streets after the sentence of La Manada, has as its main novelty that it places sexual consent at the center of personal relationships. From there, whether there is or not is what will be decisive when prosecuting the rapes and other sexual violence that are included in the project.
The most visible consequence in the Penal Code is that the differentiation between abuse and sexual assault ends. Any sexual conduct without consent will be considered assault and will be punished with a range of penalties depending on the circumstances and aggravating factors (violence, use of chemical submission, in a group…).
The bill achieves broad support from Congress, with the vote in favor of the PSOE, United We Can, ERC, Citizens, PNV, EH Bildu, Más País, Compromís and Junts, among others.
Instead, they vote against the PP and Vox. The main censorship carried out by the popular, as explained by the deputy Marta González, is that the wording of the consent “endangers the presumption of innocence” because “it inverts the burden of proof” on the accused, who will be the one who has to show that there was consent. Vox has also influenced this because, in his opinion, judges are “forced” to “believe women without evidence” and allow them to “lie” and “commit crimes” knowing that on many occasions it is “impossible” to prove The consent.
The law has generated a broad consensus among left-wing groups, but prostitution has once again proven to be an issue of conflict, after this issue was the focus of debate and conflict in the last phase of the process. The PSOE has lamented that the sexual freedom law is going to leave out the women who are under that “yoke” and that it has been due to the “threat” of other parties, willing to overthrow the law on this issue. The deputy Laura Berja has criticized that some groups “do not know what to say because they do not have a position” and has urged to stop saying “now it is not time” because it is time to position oneself. It will be in the specific law that the PSOE has presented to abolish prostitution.
For her part, the Minister for Equality, Irene Montero, celebrated that the feminist movement “is making history again” with this law and stressed that the law represents a “decisive step to change the sexual culture” of the country, to leave behind “sexual terror”, “guilt” or “fear”.
“We want to leave behind the culture of rape and build a true culture of consent,” he stressed. Something that, as she has stated, is going to be achieved “despite” the “reactionary noise”, the “extreme right” or “patriarchal justice”.
These are the key points of the Organic Law of Comprehensive Guarantee of Sexual Freedom, known as the law of only yes is yes:
It is the fundamental aspect that inspires and supports the law and that will serve to judge all sexual crimes. It can be summed up in the slogan “Only yes is yes”, which was used in the feminist protests for the case of La Manada. This is how it is explained in the law: “It will only be understood that there is consent when it has been freely expressed through acts that, in view of the circumstances of the case, clearly express the will of the person.” That is, the consent has to be positive; silence, passivity or not showing opposition will not work in case there is a complaint of aggression.
The authors of the rule want this to avoid leaving defenseless victims of sexual assault who have not shown physical resistance for different reasons, such as fear or intimidation.
It is linked to the previous point and is one of the most relevant issues of the law. The distinction between sexual abuse and assault ends with a reform of the Criminal Code that will consider all sexual acts not consented by the victim to be a violation, which will be punished with different types of penalties depending on the severity and the circumstances. Until now, the distinction was determined based on whether there were episodes of violence or intimidation. Changing this was a demand of the feminist movement.
The new penalty system ranges from a fine to prison terms of 12 years for aggravated violations, and up to 15 years when two aggravating circumstances concur. Among the aggravating factors are, among others, sexual assaults committed by two or more people, the use of drugs or drugs to annul the will of the victim, that the woman is a partner or ex-partner (even without living together) or the use of physical violence or weapons to threaten.
A novelty is the criminal prosecution of expressions, compliments, behaviors or propositions of a sexual nature “that create an objectively humiliating, hostile or intimidating situation for the victim.” They will carry a fine or work for the benefit of the community or penalty of permanent location. For that, the aggrieved person will have to file a complaint.
Finally, this issue has been left out of the law, after a head-on clash between left-wing forces that jeopardized the processing of the norm. The Ministry of Equality amended itself and from United We Can support other parliamentary groups to lift from the law the persecution of locative third parties, that is, the transfer of spaces, premises or flats to practice prostitution, even if it is volunteer. The PSOE presented an amendment to toughen up this persecution, but was finally forced to give in and withdraw it because the rest of the leftist parties threatened to overthrow the law.
A catalog of measures is established to provide victims of sexual violence with specialized comprehensive assistance to address their situation. From medical, psychological or labor care, to legal advice and free legal assistance. In order to provide this service, “24-hour centers” will be set up under the criteria of “permanent attention and urgent action”.
Regarding minor victims, the bases are established to implement in Spain the Anglo-Saxon or Scandinavian Barnahus Children’s House model. It is sought that in these Children’s Houses minors receive specialized attention. Also that obtaining justice is done with greater guarantees and without re-victimizing minors, for example by obtaining a testimony in safe conditions that facilitates the investigation.
The dissemination of private photographs and videos of sexual content without consent will be a conduct punishable by three months to one year in prison or a fine of six to 12 months. Likewise, sharing or forwarding these types of images via WhatsApp or other channels after receiving them will also be subject to a fine of one to three months.
The education system will provide content on “sexual education and gender equality and affective-sexual education for students appropriate according to age” and “at all educational levels”. In addition, at all stages there will be training content “on the appropriate and critical use of the Internet and new technologies, aimed at raising awareness and preventing sexual violence and protecting privacy.”
In addition to rape, which is the most serious expression, female genital mutilation, forced marriage, sexual harassment and trafficking for sexual exploitation are also classified as sexual violence.
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