Chronology of the ‘only yes is yes’, the law that only lasted 200 days in force

The possibility of reforming the Penal Code and sexual crimes came in 2018, when feminism took to the streets to protest against various judicial milestones in the process of ‘la manada’, the five accused at that time of gang raping a young woman. on a portal in Pamplona during the 2016 Sanfermines. Demonstrations to protest against their release, against the dissent of a judge who went so far as to affirm that the victim enjoyed what happened but, above all, to denounce that they were convicted of abuses and not for sexual assault by the Navarrese courts.

The first sentence came with the PP in the Government and it was the then Minister of Justice, Rafael Catalá, who opened the door to a possible reform of the Criminal Code with the activation of a codification commission that slowly began to explore the possibility to recover the term “violation” to unify the terms. A year later, at the end of 2019, the Supreme Court used the same Penal Code to convict them of sexual assault and increase their sentences to 15 years in prison per head. Even warning of the possibility of having multiplied the sanction as it is a multiple violation.

The change of government after the motion of censure, meanwhile, gave higher priority to this legal reform that Podemos was demanding from the first sentence of ‘la manada’. “Of course, training is needed, but that is not enough, the Penal Code needs to be reformed,” said Irene Montero, then a deputy and spokesperson for Unidas Podemos in Congress, on Radio Nacional in June 2018 after the release of the prisoners. five accused. A few weeks later, her group unsuccessfully presented a bill.

From the street to the Council of Ministers

The arrival in government of the party then led by Pablo Iglesias turned the electoral promise of Podemos into a legislative project that had come a long way. In October 2018, for example, the Government and Podemos reached an agreement for the General State Budget and “shield that only yes is yes.” The agreement became a draft a few days before the 2020 state of alarm and entered into force on October 7, 2022 after obtaining parliamentary support from the partners of the coalition executive but also from ERC, Bildu, PNV, Ciudadanos, JxCat , Más País, Compromís and the BNG.

The norm was a milestone in the legal treatment of sexual crimes but also of the victims. A law that introduced modifications to 16 different laws, among others the Workers’ Statute or the equality law, and that did not only touch on sentences or the division between aggression and abuse. It also provided for the creation of 24-hour care centers for victims, specialized courts, aid to victims, and statistical consideration of sexual femicide.

It also included a new definition of sexual consent that was much more complete than the one that until then had been included in criminal laws, although it had always been a leading element in cases of sexual offences. The consultative phase was successful: the Fiscal Council had praised the new definition of consent, the Council of State welcomed the new penological spectrum, and the General Council of the Judiciary stated that the bill, subsequently corrected, could lead to downward revisions. of maximum sentences.

The law entered into force in October 2022 but, a few months earlier, at the end of summer, the first predictions had arrived that none of the advisory bodies had exposed. Agustín Martínez, lawyer for the rapists of ‘la manada’, announced that he would take advantage of the new law to request lower sentences for his clients. Already then sources from the Supreme Court explained to elDiario.es that in that specific case there would be no benefit, but an article of the Penal Code hovered over its application: the one that allows a new law to be applied retroactively if it benefits a convicted person.

Drip of cases, doubtful data

The first domino piece fell in November of last year, just over a month after the rule came into force. The newspaper The world published an order in which the judges of the Provincial Court of Madrid lowered the sentence of a sex offender, understanding that the ‘only yes is yes’ law benefited him more than the old Penal Code. A pedophile who abused his partner’s underage daughter saw his sentence reduced from eight to six years in prison.

Then began a cascade of court decisions that lowered the sentences of sex offenders by applying the new law. Sometimes reviewing cases that had been sentenced a decade ago, sometimes applying the new rule to cases yet to be sentenced, and sometimes causing the offender to be released from prison.

The legal debate was mixed with the political one and with all fingers pointing to Irene Montero’s Ministry of Equality, which promoted one of the most important measures of that faction of the Government, at that time, along with the minimum vital income. Jurists and some resolutions pointed out that this reform of the Penal Code had omitted to include a clause that, in other cases, had prevented massive reductions in sentences retroactively. The Prosecutor’s Office unified its criteria a few weeks later and rejected the indiscriminate reductions. There was no reliable data on the volume of cases to compare it with the number of holders.

While the cases headed to the Supreme Court, the other half of the battle was fought in front of the microphones. Those responsible for Equality defended that no consultative body had warned of this possibility and that a part of the judicial career was applying the law in an erroneous way. From the other side of the Council of Ministers, already at the beginning of 2023, the socialist wing of the Government was open to introducing changes to alleviate what were baptized as “undesired effects”, while the opposition started the double electoral year with a weapon dropped from the sky in the hands

The first case did not take long to reach the Criminal Chamber of the Supreme Court, at the end of November 2022. The first sentence should have been the one that confirmed 12 years in prison for a man who raped his niece in Pollença, but unforeseen events in the Chamber’s calendar brought the Arandina case to the pole position of ‘only yes is yes’. The Supreme Court increased his sentences but, he explained, not as much as it could have done without this rule. The succession of sentences left an express collection of jurisprudence on cases pending final sentence: a minimum sentence must be adapted to the new and lower minimum sentences while an intermediate sentence viable with the new law remains as it is.

The ‘only yes is yes’ controversy overlapped with the repeal of sedition and the embezzlement reform while the data continued to lack any kind of reliability. The territorial courts reported unevenly and while the judges in Madrid seemed more inclined to sign reduced sentences, in La Rioja there were few requests for review that passed the filter. But no one knew exactly how many rebates had been signed, how many had been rejected, and how many sex offenders had benefited before their case was finally adjudicated, which sounds similar but is a different kind of process and not comparable.

The war of figures and the reform

In full political and legal fray came into play the General Council of the Judiciary. Not entirely, but the conservative faction that for months had become the battering ram of the Popular Party within the governing body of the judges, blocking, for example, for weeks the partial renovation of the Constitutional Court. In February, two conservative members met to address this issue with a delegation from the European Parliament behind the backs of their colleagues from the progressive sector.

It was the CGPJ that set out to collect the figures on the effects of the ‘only yes is yes’ law, with leaks of incomplete data and the publication of statistics. The last count, from April 14, leaves 978 sentence reductions throughout the country and 104 releases of sex offenders. More accurate data than known to date but equally incomplete: a dozen hearings, for example, do not communicate how many cases they have reviewed in total.

Meanwhile, the “undesired effects” of the ‘only yes is yes’ widened the gap between the partners of the coalition Executive and the possibility of modifying the law was making its way on the socialist side, even if it was necessary with the support of the Popular Party . Justice and Equality crossed public and private reproaches for weeks and the formula for the reform arrived in mid-April: PSOE and PP agreed to a series of technical amendments giving way to the agreement that this Wednesday sealed the reform in the Senate.

Along the way, he left the image of the face-faced socialist bench while the PP deputies joyfully applauded a reform that Alberto Núñez Feijóo’s party is already using as a providential intervention to avoid the release of more rapists and pedophiles.

The upper house has approved the changes with the votes in favor of a very different part of the parliamentary arc that allowed the first version of the law to be carried out: PSOE and PP in favor and traditional allies of the Government such as ERC and EH Bildu against. It is the end of weeks of debate on whether consent was no longer at the center of the norm, on the finally approved need to increase the penalties, and on a reality: this reform will not stop the reductions. It will be applied, in any case, to sexual assaults committed after its entry into force.

The law of ‘only yes is yes’ has lasted in its entirety for just over six months, which transferred the social outcry of feminism to the Official State Gazette after the first sentences in the case of ‘the herd’. All this while the Prosecutor’s Office has appealed dozens of downward revisions to the Supreme Court and, therefore, without the Criminal Chamber, which sets the pace for the rest of the courts in Spain, having ruled on the matter. The judges of the High Court have several cases on the table and will have a plenary session in this regard that will meet in the first week of June to approve or not the revisions that have led to the greatest disagreement between the partners of the Government.