Only Yes is Yes for crimes against ‘Libertad Sexual’

Only Yes is Yes for crimes against ‘Libertad Sexual’

Spain’s new law, also called the "ONLY YES IS YES" law, has been introduced in respect of crimes against ‘Libertad sexual’ (literally this translates as sexual freedom but a closer meaning in English is sexual safety). This regulation* came into force in October last year and is causing controversy.

In general terms, the new law punishes crimes against ‘Libertad sexual’ with more severe penalties. However, without a clause addressing the transition period, some Appeal Courts in Spain interpreted that it should reduce some conviction sentences imposed in application of the previous law. This led to the release of many rapists and other sexual offenders from prison. As a result, there has been considerable criticism against the Minister of Equality for Spain. This has resulted in attacks on the entire law itself despite its positive and revolutionary perspective.

To alleviate this defect, the Spanish Parliament approved a further law** However, this has also caused strong debate, since it reincorporates the elements of violence or intimidation as requirements to prosecute the crimes against ‘Libertad sexual’. This is a concept that the previous norm considered superseded, following the Istanbul Convention on preventing and combating violence against women and domestic violence, where the concepts of violence or intimidation are included as an inseparable part, of sexual violence. In other words, any non-consensual sexual act is violent.

The aspect of this law attracting most comment, is known as the “Only Yes Is Yes Law”. It modifies article 178 of the Penal Code. It will be interpreted that there is consent to have sexual relations only when it has been "freely manifested through acts that, in the circumstances of the case, clearly express the will of the person." That means that there are no more possible interpretations in favour of the accused person, about the existence of the victim’s consent in the cases of silence of the victim.

Another very important innovation is that the crime of sexual “abuse” disappears, and any attack on ‘Libertad sexual’ is now considered sexual “assault”. On the other hand, the crime of discovery and disclosure of secrets is modified by incorporating a new paragraph into article 197.7 of the Penal Code. This punishes anyone who shares intimate images or recordings of another individual (disseminates, reveals, or transfers, to third parties), without the consent of the affected person.

Corporate Responsibility and changes for workplaces

In respect of the responsibility of companies, the crime of workplace harassment and the crime of sexual harassment are incorporated, as two new crimes within the list for which legal entities can be criminally responsible. The modification of article 194 of the Criminal Code is also relevant from the perspective of the criminal liability of legal persons. It provides that if the commission of any of the crimes of exhibitionism, sexual provocation, crimes related to prostitution, corruption of children, establishments or premises were used, open

or not to the public, its final closure will be mandatorily ordered in the conviction sentence. The closure may also be adopted on a precautionary basis, during the criminal process.

In the labour field, the new law also states that the victims of sexual violence, victims of gender violence, or victims of terrorism, have the right to request flexible working hours, change their geographical position within the company if there is the possibility of that change, suspend the employment relationship, or even terminate the employment relationship with a compensation for termination of contract of 20 salary days per each year of service, up to a maximum of 1 year of wages.

The new Law also states that city halls and companies will have to redesign their physical spaces, in the cities and inside the companies, to make them safe spaces to prevent any attack on sexual freedom.

Mandatory training

Finally, the law has a whole chapter dedicated to mandatory training for judges, prosecutors, lawyers, as well as for political parties and other professional sectors directly linked to work with victims. It also makes mandatory the training in equality and awareness with a gender perspective at all educational levels, from primary education to university.

New procedures and policy

It is significant that the Public Prosecution can proceed with a complaint in court of its own motion. Before the new Law, sexual offences against an adult could only be prosecuted if there was a complaint from the adult victim.

In addition, Article 18 point 4 orders all Public Administrations and Government Branches to act with "due diligence" to guarantee the protection of sexual freedom in the public filed.

The new law means there must be a reconsideration of the approach of all the policies and of all the internal regulations of workplaces. They must review and adapt their internal regulation, as many workplaces will not have taken the gender and sexual security perspective into consideration in the original design of their Compliance Programs, for example, evaluation of risks and drafting of workplace policies. In short, it represents a new and forceful step forward in a cultural shift towards gender equality. ■

By Andrea Accuosto Suárez

Abogada, Barcelona, specialised in Criminal Law, Employment Law and Compliance

* ORGANIC LAW 10/2022 OF SEPTEMBER 6, ON THE COMPREHENSIVE GUARANTEE OF SEXUAL FREEDOM

** Organic Law 4/2023, of April 27, (for the modification of Organic Law 10/1995, of November 23, of the Criminal Code, in crimes against sexual freedom, the Criminal Procedure Law and Organic Law 5/2000, of January 12, regulating the criminal responsibility of minors)