After passing the opposition after five years of study, going through the Judicial School and working as a trainee judge in Cantabria and Marbella, Cristina Meré (Valladolid, 1993) took possession a little over a month ago of her first assignment in the Línea de la Concepción (Cádiz), where he is the head of a Court of First Instance and Instruction. Very involved in equality issues inside and outside the judicial career, she answers the phone for elDiario.es in a week marked by 8M and the political anger around the reform of the ‘only yes is yes’ law.
Meré vindicates the “positive” aspects of this norm, such as the definition of consent and the paradigm shift that involves taking into account the will of the victim from a “positive” point of view or the measures focused on their recovery. Also the unified model that made the crime of abuse disappear to consider aggression any act in which there is no consent because, in his opinion, “when something in law is not understood, it is not right.” However, he admits that it was an “error” not to have regulated the transition between one rule and another, which has led judges to apply the most favorable criminal law to the aggressors and issue hundreds of reductions in sentences for sex offenders.
Regarding the obtaining of evidence in crimes against sexual freedom, Meré defends that there must be some incisive interrogation, although there are questions that “are not necessary.” “I don’t have to ask anyone if he closed his legs or what he was wearing. I will ask him if he has consented and given her consent or not. The interrogation is more or less incisive depending on the evidence, ”she says.
The issue of consent has been at the center of the debate in recent weeks regarding the reform of the ‘only yes is yes’ law. What did this norm bring new in relation to consent?
Consent is probably the most important thing in the law. Before, what was taken into account mainly to consider whether there was abuse or aggression was not so much that the person consented, but the fact that there was no refusal of that consent demonstrated in intimidation, violence, abuse of superiority or the use of drugs to try to vitiate that consent and achieve sexual access. Fixing the need for the victim to consent is to take into account the opinion of the woman regarding sex, which is important and relevant. Until now they asked you if you had said no. The change is that now they must ask you if you have said yes, if you have consented and that will has manifested itself in some way.
Wasn’t consent essential in the previous regulation?
Yes, but from a negative point of view. The victims had to have expressed their no. There are sentences –quite old, obviously– that include how women were asked if they had closed their legs well, if they had exerted force with their sexual organs. Subsequently, interpretations of environmental intimidation were made, where it is not necessary for there to be a ‘no’ from the victim to consider that there is abuse or aggression if the situation involves intimidation. The nuance of defining consent and taking into account the will of the victim is that it is done from a positive point of view. The other person has to know that you want to have that sexual relationship.
The Ministry of Equality considers that increasing the penalties in cases in which there is violence or intimidation –as proposed by the PSOE– distorts the spirit of the norm because it will pivot the procedures on the existence of these elements and not on consent. Do you agree?
I neither agree nor disagree. I think we are focusing on issues that are not really relevant. Ending the distinction between abuse and aggression was necessary. Before, having a carnal access [penetración] it could be considered sexual abuse and not assault. And that was something that was not socially understood. And when something in law is not understood, it is not right.
Unifying the concept has been something positive, but then it was important to lower the minimum penalties and take into account greater circumstances when applying the rule in each specific case. What is intended by reducing the minimum penalties is that the serious and less serious cases are prosecuted. Society thinks of the rapist who commits a violent sexual assault, who leaves the victim devastated and who deserves a very high sentence. These cases are found in the courts, like child abuse or human trafficking. That is, very serious cases. But we also find cases of people with sexual inexperience, abuse of superiority or consents flawed by substances. In other words, less serious cases than the previous ones but that must also be prosecuted and this is what is intended by lowering the minimum sentences.
Was lowering the minimum sentences, therefore, the right decision? It is, in part, what has caused the reduction of sentences.
It has not given much time to apply the new law. But this norm foresees many more circumstances to take into account, introduces consent and seeks to specify more. It also establishes rights similar to those of victims of gender violence by recognizing coverage for victims of sexual assault in all senses: social, economic and, above all, psychological. That is, it has many positive things. Reducing the minimum sentences also makes sense, although the public has been left with the fact that there are sex offenders who have taken to the streets. It is clear that the law had an error that could have been solved, but it also has other things that are positive and emphasis must be placed on it.
What error are you referring to?
The transition should have been regulated in some way so that the judges would have applied this transitional regime between one rule and another. In the end, since this has not been regulated, the basic principle of law is being applied that always requires the criminal to apply the most favorable criminal law.
The Prosecutor’s Office maintains that a transitional provision is not necessary to oppose reducing the sentence, although it is a criterion that many courts have not followed.
The Prosecutor’s Office can establish an interpretation, but judges are united to the jurisprudence of higher bodies. Since there has not been time for the issues to reach these higher bodies, there can be no unification of criteria. There is also judicial independence in which each judge takes into account the specific case that is presented to him. And yes, although criteria can be unified, not all cases will be exactly the same.
He has affirmed that the unification of abuse and aggression into a single criminal offense has been positive. But there are experts who argue that this unification has given rise to very wide forks, which has generated excessive judicial discretion.
I think this not as a judge, but as a woman: when something cannot be explained to society so that it understands it, it is not right. For example, people did not understand that in the first sentence of ‘the herd’ the sentence was for sexual abuse. I don’t think it is negative to include that precision and that it is more easily understandable.
Is there a gap between the social perception of crimes against sexual freedom and its legal interpretation?
The judges set the severity in terms of the penalty. me in that case [el de la manada] I kept in mind how much the subjects had been sentenced, which was nine years. People were left with the fact that the sentence had been for abuse and not for rape. What differs between the legal and the social is the legal interpretation. That does not mean that judges do not consider that these are serious crimes.
On many occasions the victim’s testimony is the only direct evidence in crimes against sexual freedom. Is it possible to obtain that proof without doing incisive interrogations?
That there is some incisive questioning is necessary. But there are questions that were asked in the past and that are not necessary. I don’t have to ask anyone if he closed his legs or what he was wearing. I will ask him if he has consented and given her consent or not. In any case, there are questions that, depending on the specific case, may be more or less necessary. For example, if semen is found, I have to ask the victim if the offender has ejaculated. If it is not found, perhaps that question is not necessary. The interrogation is more or less incisive depending on the evidence.
Sexual crimes in Spain are punished with higher penalties than in other countries. Does longer sentences protect women more?
I think you have to take into account the different legal and political systems to be able to make that comparison. In any case, what the victim really finds positive is the system of recognition of rights. In other words, that she can have the status of victim and, as such, that she can access rights such as psychological and legal assistance or economic rights that are included in the law, not so much that the aggressor spends more or less time in prison . Considering that it is good for the victim that the aggressor spends more time in prison is to presume that the reintegration objective of our prison system does not work and that is to presume too much.
Apart from the debate on the law, do sexist prejudices persist in the judiciary? More or less than in the rest of society?
I do not notice that there are greater sexist prejudices in the judiciary than in the rest of society. Within the judiciary, at least with respect to me, we are the majority of women, each time we approve [la oposición] more women… and I think it is something that is normalized. Yes, I have perhaps noticed more prejudice for being young, but not so much for being a woman.