The Spanish Only Yes Means Yes Sexual Assault Law and Its Unintended Retroactive Sentence Reductions

In October of 2022, the Spanish Congress enacted the Organic Law of Comprehensive Guarantee of Sexual Freedom, commonly referred to as Solo Si Es Si (Only Yes Means Yes), as a means of strengthening protections for sexual assault victims in Spain. [1] When evaluated at face value, the law appeared to represent a monumental expansion of legislative protections for women and victims of sexual violence in a country in which, according to the 2019 Macro-survey on Violence against Women, one in every two women has experienced sexual violence in their lifetimes. [2] Despite its laudable and necessary objectives, the law’s implementation revealed the potentially dangerous effects of the gap between progressive political rhetoric and effective policymaking in women’s rights legislation. Under the new legislation, over a thousand sexual offenders, including those whose crime had catalyzed the creation of the Only Yes Means Yes law, successfully petitioned for reduced sentences. [3] This article explores the ways in which a reform designed to impose harsher punishments on perpetrators of sexual assault inadvertently became a pathway to freedom for many of them.

The Solo Si Es Si reform was born out of an urgent need to reform a deeply flawed and outdated system that had existed under the Spanish Criminal Code from 1995 to 2022; a framework that bifurcated sexual offences into two distinct categories of criminal offences with separate penalty ranges. [4] Under the previous system, “sexual assault” operated on a coercion framework and was determined by the perpetrator’s use of violence and intimidation. [5] This charge carried sentences ranging from one to five years for “violating one’s sexual freedom,” six to twelve years for rape involving penetration, and up to fifteen years for aggravating circumstances. By contrast, the term “sexual abuses” operated on a consent-based framework – addressing cases in which there was an absence or invalidity of consent – and carried lighter penalties: one to three years’ imprisonment or merely a fine for basic offences, and four to ten years when penetration occurred. [6] Although the law problematically lacked a legal definition of consent to guide its interpretation, it identified several specific circumstances constituting the lesser crime of sexual abuse: when victims were unconscious or mentally impaired, when consent was obtained through drugs or substances, and when consent was obtained through exploitation of a "manifest superiority" that deprived victims of autonomy. [7] The “manifest superiority” provision became particularly significant in practice, as courts applied it to everyday situations involving sports trainers, stepfathers, priests, gynecologists, and other authority figures who leveraged their social power to obtain invalid consent. [8] Ultimately, the law’s rigid categorization created an artificial hierarchy in mandating harsher punishment for offences involving demonstrable coercion than for violations of consent that did not constitute legal “intimidation,” irrespective of the actual harm experienced by the victims. 

The Only Yes Means Yes law was born after this very issue ignited public outrage after the ruling in the notorious 2018 La Manada (wolfpack) case. [9] During the San Fermin festival in Pamplona, an eighteen-year-old woman was gang raped by a group of five men who referred to themselves as “the Wolf Pack,” and filmed the attack. [10] The Provincial Court in Navarra ruled that there were no signs of coercion, reasoning that because the woman did not actively resist nor say “no” during the assault, her passivity- in which she appeared to be drifting in and out of consciousness, constituted implicit consent. [11] Due to the prosecution being unable to prove that the perpetrator’s behavior amounted to “intimidating conduct” involving violence, coercion, or threats, two lower courts found them guilty only of the lesser crime of “sexual abuse” by abuse of a position of power, imposing nine-year sentences as opposed to the fifteen years appropriate for aggravated rape. [12] Ultimately, the Supreme Court overturned this ruling in 2019, sentencing the perpetrators to the maximum fifteen year sentence after a national protest movement brought thousands of people to the streets- with more than 30,000 in Pamplona on one day alone, chanting slogans such as "it was not abuse, it was rape," and "we believe you, sister." [13, 14] The widespread protests contested the trivializing nature of the legal classification of such a violent crime as mere “abuse,” as it severely diminished the gravity of the violation and implicitly placed blame on victims for failing to resist their aggressors. [15] It was this very criticism that the Solo Si Es Si law, created in October of 2022 sought to address, abolishing the distinction between sexual assaults and sexual abuses entirely, creating a unified offense of sexual assault (“agressión sexual.”) [16] Under Article 178, any act against another person’s sexual autonomy without consent is now punishable by one to four years imprisonment, with rape involving penetration carrying four to twelve years. [17] The law is fundamentally rooted in the affirmative consent of the victim, explicitly stating that consent is present only when “manifested freely through acts that, considering the circumstances, clearly express the person's will,” language drawn from the Istanbul Convention. [18] This reformulation eliminated the previous burden on victims to endure the difficult process of proving violence or intimidation in order to determine the length of their aggressors sentences, and instead makes the presence or absence of consent the primary determinant of criminal liability as well as sentencing. [19] The previous option of issuing only a fine was removed and the minimum sentence for non-violent offenses increased. [20] Most importantly, courts were granted greater flexibility to punish violations of sexual autonomy proportionately without being constrained by whether physical force was used.

Amongst the backlash from both sides of the political spectrum that emerged over the law’s implementation, a single highly consequential legal oversight stands out. [21] With the elimination of the charge of sexual abuse and the broadening of the term sexual assault to encompass all non-consensual sexual acts, the law raised minimum penalties for non-violent offences previously classified under the lesser charge. [22] However, by recalibrating the penalty structure to create a unified penal framework, the new law simultaneously lowered the minimum sentences for rape from six to twelve years to four to twelve years. [23] Because of the principle of retroactivity enshrined in Spanish law, specifically Article 2.2 of the Penal code, which establishes that “criminal laws that favor the defendant will have retroactive effect even if a final judgment has been issued and the defendant was serving a sentence,” defense attorneys immediately began petitioning courts for their client’s sentence reductions. [24, 25] Within a month after the law took effect in October of 2022, Spanish newspapers began reporting that imprisoned sexual offenders were receiving sentence reductions under the new criminal code, which the Supreme Court affirmed as legally mandatory under the retroactivity principle. [26, 27] As of September 2023, 1,155 sexual offenders had secured sentence reductions, with 117 released from prison entirely. [28] The law’s implementation thus became bitterly ironic, ultimately benefitting the very perpetrators of sexual violence it was designed to punish more severely, reducing even the sentence of Ángel Boza, one of the members of the La Manada case that had catalyzed the law’s enactment. [29] Prime Minister Pedro Sanchez issued a public apology to the victims for the law’s unintended consequences, referring to the oversight that led to sentence reductions as his government’s “biggest mistake.” [30]

This seemingly obvious error proved to be particularly puzzling; while the media quickly became saturated by the widespread condemnation of the law’s sentence reductions, there appears to be minimal public discourse or information available about how the reportedly unintentional oversight came to be. In reality, the widespread sentence reductions incited from the implementation of the Only Yes Means Yes law were the result of the interaction between article 2.2 of the Spanish Penal Code- which guarantees the retroactive application of more favorable criminal laws- and a critical legislative omission. The retroactivity principle, recognized in Article 49.1 of the EU Charter of Fundamental Rights, and Article 15.1 of the International Covenant on Civil and Political Rights “enjoys maximum protection” and is “not modifiable [by Parliament]- the organic legislator.” [31, 32] Critically, however, criminal law reforms since 1995 have included transitional provisions, designed to “limit the avalanche” of sentence revisions that new regulations could bring about and to restrict the conditions under which sentence revisions could occur. [33] The Fifth transitional provision of the 1995 Criminal Code essentially copied in subsequent reforms specifically stated that “in the case of custodial sentences, “this Code shall not be considered more favorable when the duration of the previous sentence imposed for the offense and its circumstances is also applicable under the new Code." [34] This critical stipulation, allowing judges to compare penalty ranges “in abstract terms;” exempting reviews of a law if the law’s newly established sentence fits within the previously established sentence, was omitted from the legal text of the Only Yes Means Yes reform. [35] This omission allowed for the large-scale sentence revisions brought about by the legislation, as many of the sexual assault convictions had imposed sentences at or near the previous six-year minimum, and when the new minimum decreased to four years, courts were constitutionally required to grant sentence reductions, despite the overlapping of the overall penalty ranges. [36] In this way, constitutional mandates for the retroactive application of more favorable laws, unrestricted by standard transitional provisions, obliged courts to reduce sentences.

This law proves to be an important example of the potentially dangerous effects of the gap between progressive political rhetoric and effective, well-informed policymaking in women’s rights legislation. While the internal decision-making process of the law remains unavailable for public scrutiny, the omission of the transitional provision was in all likelihood a byproduct of negligent drafting, insufficient criminal law expertise, and prioritization of political messaging over technical precision. [37, 38, 39] This is evidenced first and foremost by the inclusion of the protective language of transitional provisions in comparable criminal reforms for twenty-seven years prior to the implementation of Only Yes Means Yes law, as well as in the subsequent legislation enacted just months after the law’s passing. [40] Misleading public assurances by officials from the Ministry of Equality further suggest that the law was driven by feminist advocacy priorities and that the drafting team lacked sufficient criminal law expertise. Ministry officials assured the public that sentence reductions “would never happen,” dismissing warnings from legal experts while drafting, and referring to case law that interpreted a transitional provision that was omitted from the law. [41] The Ministry of Equality and Ministry of Justice were likely under the impression that the legislation could avoid the implications of Article 2.2 through what they presumed was sufficient legal jurisprudence, assuming that the transitory provision most recently copied in the 2015 criminal code reform was in force and would effectively prevent sentence reductions. [42] This is evidenced by the fact that before the announcement of the first sentence reduction in November, Irene Montero, the Minister of Equality, denied the possibility of sentence reductions through the new law. She cited the presumed transitory provision, stating: “Both the Attorney General’s Office and the jurisprudence in our country are clear that if the penalties imposed fall within the new range of penalties that come out of the new law, there is no review of penalties.” [43] This legislative misunderstanding of case law that led to the law’s drafting with an unprecedented omission of a transitional provision suggests that the law was drafted negligently amidst intense public pressure demanding the strengthening of protections for victims of sexual assault. As Professor Elena Íñigo Corroza of the University of Navarra observed, "this happened because non-experts wrote the law. There was this almost obsessive idea to unite all sexual crimes into one category...and technically, it was extremely difficult to pull off." [44] The Ministry of Equality’s prioritization of political messaging over technical precision is further illustrated by Montero’s dismissal of reports of sentence reductions under the new law as “sexist propaganda,” designed to “question feminist advances and instill doubt within women.” [45]
The backlash over the widespread sentence reductions granted to the very perpetrators the Only Yes Means Yes law sought to punish, not only eroded public confidence in feminist policymaking, but also obscured the law’s genuine achievements in placing consent at the center of criminal adjudication of sexual violence. While the Only Yes Means Yes law stands as a landmark in the evolution of Spain’s legal conception of and protections of sexual autonomy, its unintended consequences illustrate how even well-intentioned reforms can backfire when symbolic politics sideline legal precision.

Sources

1. “Agencia Estatal Boletín Del Estado. 2022. Ley Orgánica 10/2022, de 6 de Septiembre, de Garantía Integral de La Libertad Sexual.” 2022. Www.boe.es. 2022. https://www.boe.es/eli/es/lo/2022/09/06/10/con.

2. Ministry of Equality et al., “Executive Summary of the 2019 Macro-Survey on Violence Against Women,” November 19, 2021, https://violenciagenero.igualdad.gob.es/wp-content/uploads/RE__Macroencuesta2019__EN-1.pdf.

3. Sparks,Tori., “The Controversy around Spain’s ‘Only Yes Means Yes’ Law,” Barcelona Metropolitan, November 22, 2023, https://www.barcelona-metropolitan.com/features/spain-only-yes-means-yes-law/

4. Meliá, Manuel Cancio. 2023. “Sexual Assaults under Spanish Law.” Oxford University Press EBooks, March, 215–34. https://doi.org/10.1093/oso/9780198863397.003.0011.

5. Ibid.

6. Ibid.

7. Ibid.

8. Meliá, Manuel Cancio. 2023. “Sexual Assaults under Spanish Law.” Oxford University Press EBooks, March, 215–34. https://doi.org/10.1093/oso/9780198863397.003.0011.

9. Abend/Madrid, Lisa. “She Spearheaded Feminist Laws in Spain. Now the Government Is in Crisis.” TIME. Time, February 16, 2023. https://time.com/6255792/irene-montero-interview-spain-gender-equality/.

10. Ibid.

11. Sparks,Tori., “The Controversy around Spain’s ‘Only Yes Means Yes’ Law,” Barcelona Metropolitan, November 22, 2023, https://www.barcelona-metropolitan.com/features/spain-only-yes-means-yes-law/

12. Meliá, Manuel Cancio. 2023. “Sexual Assaults under Spanish Law.” Oxford University Press EBooks, March, 215–34. https://doi.org/10.1093/oso/9780198863397.003.0011.

13. News, BBC. “Pamplona Rape Case: Protests over Sentence Go in to Third Day.” Bbc.com. BBC News, April 28, 2018. https://www.bbc.com/news/world-europe-43935380.

14. Jones, Sam. “Protests in Spain as Five Men Cleared of Teenager’s Gang Rape.” the Guardian. The Guardian, April 26, 2018. https://www.theguardian.com/world/2018/apr/26/protests-spain-five-men-cleared-of-teenagers-gang-rape-pamplona.

15. Meliá, Manuel Cancio. 2023. “Sexual Assaults under Spanish Law.” Oxford University Press EBooks, March, 215–34. https://doi.org/10.1093/oso/9780198863397.003.0011.

16. Agencia Estatal Boletín Del Estado. 2022. “Ley Orgánica 10/2022, de 6 de Septiembre, de Garantía Integral de La Libertad Sexual.” 2022. Www.boe.es. 2022. https://www.boe.es/eli/es/lo/2022/09/06/10/con.

17. Ibid.

18. Council of Europe, Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, Council of Europe Treaty Series (Strasbourg: Council of Europe, 11 May 2011), https://rm.coe.int/168008482e

19. Sparks,Tori., “The Controversy around Spain’s ‘Only Yes Means Yes’ Law,” Barcelona Metropolitan, November 22, 2023, https://www.barcelona-metropolitan.com/features/spain-only-yes-means-yes-law/

20. Meliá, Manuel Cancio. 2023. “Sexual Assaults under Spanish Law.” Oxford University Press EBooks, March, 215–34. https://doi.org/10.1093/oso/9780198863397.003.0011.

21. Abend/Madrid, Lisa. “She Spearheaded Feminist Laws in Spain. Now the Government Is in Crisis.” TIME. Time, February 16, 2023. https://time.com/6255792/irene-montero-interview-spain-gender-equality/.

22. “Agencia Estatal Boletín Del Estado. 2022. Ley Orgánica 10/2022, de 6 de Septiembre, de Garantía Integral de La Libertad Sexual.” 2022. Www.boe.es. 2022. https://www.boe.es/eli/es/lo/2022/09/06/10/con.

23. José Luis Díez Ripollés, quoted in Lisa Abend, “She Spearheaded Feminist Laws in Spain. Now the Government Is in Crisis,” TIME, February 16, 2023, https://time.com/6255792/irene-montero-interview-spain-gender-equality/

24. Agencia Estatal Boletín Del Estado.. “ Ley Orgánica 10/1995, de 23 de Noviembre, Del Código Penal.,” 2024. https://www.boe.es/eli/es/lo/1995/11/23/10/con.

25. Marraco, Manuel. “Primeras Rebajas de Condena Por La Ley Del ‘Solo Sí Es Sí’: Un Excarcelado al Reducirse Cinco.” ELMUNDO. El mundo, November 15, 2022. 

26. Ibid.

27. Meliá, Manuel Cancio. 2023. “Sexual Assaults under Spanish Law.” Oxford University Press EBooks, March, 215–34. https://doi.org/10.1093/oso/9780198863397.003.0011.

28. Sparks,Tori., “The Controversy around Spain’s ‘Only Yes Means Yes’ Law,” Barcelona Metropolitan, November 22, 2023, https://www.barcelona-metropolitan.com/features/spain-only-yes-means-yes-law/

29. Ibid.

30. euronews. “Spanish PM Says ‘Biggest Mistake’ of His Government Is New Rape Law.” euronews.com, June 26, 2023. https://www.euronews.com/2023/06/26/spanish-pm-admits-the-biggest-mistake-of-his-government-is-the-new-rape-law.

31. European Union Agency for Fundamental Rights. “Article 49 - Principles of Legality and Proportionality of Criminal Offences and Penalties,” April 25, 2015. https://fra.europa.eu/en/eu-charter/article/49-principles-legality-and-proportionality-criminal-offences-and-penalties.

32. Elnotario.es. “Consecuencia de La Aplicación Retroactiva de La Norma Penal Más Favorable,” 2023. https://www.elnotario.es/hemeroteca/revista-107/opinion/opinion/11887-consecuencia-de-la-aplicacion-retroactiva-de-la-norma-penal-mas-favorable#:~:text=The%20Organic%20Law%2010/2022,had%20not%20yet%20been%20tried.

33. Ibid.

34. Ibid.

35. Ibid.

36. Ibid.

37. Ibid.

38. Sparks,Tori., “The Controversy around Spain’s ‘Only Yes Means Yes’ Law,” Barcelona Metropolitan, November 22, 2023, https://www.barcelona-metropolitan.com/features/spain-only-yes-means-yes-law/

39. Abend/Madrid, Lisa. “She Spearheaded Feminist Laws in Spain. Now the Government Is in Crisis.” TIME. Time, February 16, 2023. https://time.com/6255792/irene-montero-interview-spain-gender-equality/.

40. Elnotario.es. “Consecuencia de La Aplicación Retroactiva de La Norma Penal Más Favorable,” 2023. https://www.elnotario.es/hemeroteca/revista-107/opinion/opinion/11887-consecuencia-de-la-aplicacion-retroactiva-de-la-norma-penal-mas-favorable.

41. Ibid.

42. Maldita.es. “Ley Del ‘Sólo Sí Es Sí’: ¿Se Hubiera Arreglado Con Una Disposición O Ya Había Jurisprudencia? ¿Cómo Se Ha Hecho Otras Veces?” Maldita.es - Periodismo para que no te la cuelen, June 8, 2023. https://maldita.es/malditateexplica/20221118/ley-solo-si-jurisprudencia-disposicion/.

43. Maldita.es. “La Ley Del ‘Solo Sí Es Sí’: Rebajas En Las Condenas, En Qué Se Basan Los Jueces, La Postura de Igualdad Y Qué Dicen Los Expertos.” Maldita.es - Periodismo para que no te la cuelen, June 7, 2023. https://maldita.es/feminismo/20221117/ley-solo-si-es-si-rebajas-condenas/.

44.   Sparks,Tori., “The Controversy around Spain’s ‘Only Yes Means Yes’ Law,” Barcelona Metropolitan, November 22, 2023, https://www.barcelona-metropolitan.com/features/spain-only-yes-means-yes-law/

45. Domingo, Carmen. “How Spain’s ‘Only Yes Means Yes’ Law Has Freed Sexual Assault Convicts from Prison.” Ethic, December 11, 2023. https://ethic.es/english/how-spains-only-yes-means-yes-law/.