Spain passes law requiring 'freely expressed' consent for sex

The new law was spurred by the anger and huge protests that followed the trial of the defendants in the rape of the 18-year-old woman. Photo / AP

Six years ago, an 18-year-old woman was raped in a building lobby by five men during the bull-running festival in Pamplona, Spain. The men filmed it on a cellphone video, which showed her still and with her eyes shut during the assault.

Her case — and the initial failure to convict the men of rape — galvanised Spain, and on Thursday it helped inspire Parliament to pass a law on consent that observers say could transform sexual behaviour in the country.

"It is not my law, but a law for all the women, so let's move on," the victim, whose identity has been protected by the authorities, told the Spanish newspaper El País.

Under the measure, any sex that takes place without clear consent can now be prosecuted as rape. Before passage of the law, for an act to be considered rape, it needed to involve some sort of violence or coercion. Otherwise it fell into the category of sexual abuse — a lesser crime.

Advocates of the new law have welcomed it as a strong statement about the rights of women, with Spain joining countries including Canada, Sweden and Denmark that have adopted a similar approach to rape and consent.

'A very significant shift'

"The feminist call of 'only yes means yes'" has "finally become law in our country", Irene Montero, Spain's minister of equality, said on Thursday.

The law does not require that a "yes" to a sexual act be expressed verbally. But it does say 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".

It remains to be seen how courts will interpret what that means as prosecutions are brought under the new law. But some experts hailed the measure as a big step forward.

The law "is a very significant shift" since it moves away from "consent being what usually a man imagines a woman is thinking", said Lise Gotell, a professor of women's and gender studies at the University of Alberta, Canada.

"There is a recognition that consent is subjective from the perspective of the person experiencing the sexual contact," said Gotell, an expert on sexual consent issues.

The proposal took roughly two years to go through the legislative process. On Thursday, Spain's lower house gave it final approval, with 205 votes in favour and 141 against.

The law requires what is often called "affirmative consent". It makes clear that consent cannot be given if a person is unable to understand the situation because of the effects of drugs or alcohol, or if they have fallen asleep.

A 2020 study by Amnesty International found that only 12 European countries out of 31 analysed had laws defining rape as sex without consent. In most of them, the definition of rape required proof of some use of force, threats and coercion, and that victims had been unable to defend themselves.

"But most rapes do not fit stereotypes such as a 'stranger jumping out of the bushes,'" the organisation noted. Victims are often shocked by the attacker, it said, and one reaction can be to freeze, even with no physical violence involved.

Supporters of Spain's legislation argued that in the absence of such a law, victims often faced a second trauma: having to prove in court that they had tried to resist the aggressor.

The new law sets different levels of convictions for sexual aggressors, depending on the severity of the case, with offenders facing anything from fines to 15 years in prison. It also sets out some aggravating circumstances for rape cases, with tougher sentences if rapists act in a group, if the victim is a vulnerable person, if the rapist is a boyfriend or a relative, or if the suspect drugs the victim.

The law also allows for prosecution in cases of street harassment.

'Wolf pack' case

The new law was spurred by the anger and huge protests that followed the trial of the defendants in the rape of the 18-year-old woman, which helped fuel a Spanish version of the #MeToo movement.

The five men were initially cleared of raping the woman and sentenced to nine years in prison for "continuous sexual abuse", rather than the almost 23 years in prison that the prosecution had sought. The judges found that there was not sufficient evidence of violence or intimidation; they said the victim had been passive during intercourse.

The decision set off widespread outrage and drew tens of thousands of protesters to the streets in hundreds of demonstrations all over Spain, leading politicians to call for an overhaul of the country's rape laws.

The attackers had labelled themselves a "manada", a term often used to refer to a wolf pack.

"If what the wolf pack did as a group wasn't violence against a defenceless woman, what do we then understand to be rape?" Pedro Sánchez, then leader of the main Socialist opposition party, and now the prime minister, wrote on Twitter.

The outcry increased when the men's lawyers portrayed the victim as a consenting sexual partner, and when the men were released on bail.

In 2019, Spain's Supreme Court overruled the previous decisions and sentenced the five men to 15 years in prison for rape.

During the final arguments before the Supreme Court, the defendants' lawyers said that the victim should have spoken out during the attack.

"She simply had to say, 'No,'" Agustín Martínez, a defence lawyer, told the court.

According to the new law, it's enough that she did not say yes.

This article originally appeared in The New York Times.

Written by: Emma Bubola and José Bautista
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