Draft Bill on Sexual Freedom.

Introduction. Draft Bill on Sexual Freedom.

The draft Organic Law amending the Criminal Code for the protection of the sexual freedom of citizens, which was approved last Tuesday, March 3, 2020, and remains non-public at this date, is currently being referred to consultative bodies.

According to information provided by the Minister of Equality, Ms. Montero, the objective is to reform the current Criminal Code to provide victims of sexual abuse offenses with greater legal protection; a modification that arises in response to the public discontent generated by rulings such as the “La Manada” or “Arandina” cases.

Furthermore, as stated by the Minister of Equality, the aim is to ensure the correct adaptation of Spanish substantive criminal law to the commitments adopted by the Kingdom of Spain upon signing the Council of Europe Convention on preventing and combating violence against women and domestic violence, better known as the Istanbul Convention.

Restructuring of the Criminal Code.

The reform is based on a reorganization of Title VIII of the Criminal Code, which in its current wording reads “Offenses against sexual freedom and indemnity,” but under the new text would be titled “On Rape and other Sexual Assaults.”

Currently, this Title is divided into six different Chapters, the second of which relates to sexual abuse offenses. With the intended modification, this title would disappear, as the legal concept of sexual abuse is set to be removed from our legal system.

As a result of this new organization, Title VIII will include other offenses currently scattered across other titles of the Criminal Code, such as genital mutilation (currently under Title III, regarding injuries), forced marriage (now in Title VI, regarding offenses against freedom), and human trafficking for the purpose of any type of sexual activity (currently located in Title VII bis).

Consent as the Main Pillar.

This government proposal seeks to change the current conception of consent for sexual acts. Until now, the focus was on “no means no,” based on the premise that the victim’s refusal to engage in any sexual activity had to be respected, with an offense being committed when acting against that refusal.

The executive now intends to change this conception by replacing the need for the victim to provide a refusal or show resistance with the requirement to obtain express consent.

To this end, the draft Bill defines consent as a free outward manifestation by the victim, through conclusive and unequivocal acts, according to the concurrent circumstances, of their express will to participate in the act.

Two issues derive from this concept of consent:

The first involves starting from a situation where it is presumed that the victim does not wish to perform any sexual act, a presumption that is rebutted when they perform an act included in the previous definition, thereby manifesting their express consent.

The second, much more problematic in legal terms, is the understanding that the expression of consent will occur through acts that are unequivocal according to the concurrent circumstances. This last nuance introduces an always undesirable subjective element into the legal drafting, which, although perhaps inevitable, opens the door to different interpretations depending on the context, location, educational level, or prior relationship between the parties involved. It seems clear that one cannot expect the same acts from a person in a party context, late at night and involving alcohol, as in more relaxed settings.

Stiffening of Criminal Sanctions.

In this regard, two major changes are proposed.

On one hand, the possibility of substituting custodial sentences with fines is abolished, which until now could be imposed by Judges and Magistrates as an alternative to imprisonment. These fines are currently provided for throughout Title VIII, with the exception of those in Chapter I relating to sexual assault. Allowing for these fines empowered the judge to sanction the defendant with fines ranging from six months for the most minor offenses to two years for the most serious ones, thus avoiding a prison sentence.

On the other hand, it is intended to strengthen punitive action by increasing the penalties for various offenses; for example, the current wording for harassment and assault offenses is compared with the government’s proposals.

For the offense of harassment, a prison sentence of three to five months is currently provided; after the reform, this sentence would range from six to twelve months of imprisonment, which means raising the new minimum penalty above the current maximum. In cases of special gravity where the perpetrator takes advantage of a relationship of authority or special trust, or where the victim is considered particularly vulnerable, the current penalty of five to seven months would become twelve to twenty-four months.

A similar phenomenon occurs in the offense of assault; the current wording of Article 178 punishes the defendant with prison sentences of one to five years; after the reform, the minimum penalty would rise from one to three years.

The wording for the offense of rape, currently covered in Articles 179 and 180 of the Criminal Code, would change, assigning a sentencing range of 4 to 10 years. These penalties could be increased up to 12 years of imprisonment when a single aggravating circumstance is present and could reach fifteen years if two or more of these circumstances occur. Some of these circumstances include the perpetrator’s use of weapons or means dangerous to life, the victim being considered particularly vulnerable, or the offense being committed by two or more persons, this list being numerus apertus.

Furthermore, the text announces higher penalties for each sexual violence offense when the perpetrator is the victim’s husband, partner, or ex-partner.

New Criminal Categories.

Parallel to the disappearance of the offense of sexual abuse and fine-based penalties, other categories appear, such as the offense of street harassment, a specific aggravating factor for these offenses, and a mitigated form of assault.

This criminal category of street harassment will be configured as a minor offense, punished with a sentence of permanent location plus the imposition of one month of community service or a fine alternatively; therefore, it will not involve deprivation of liberty. Although the factual basis for this type of offense is not entirely clear, it refers to those sexual or sexist expressions, behaviors, or propositions that place the victim in a situation that can be objectively considered humiliating, hostile, or intimidating. Due to its configuration, this new criminal category seems to attempt to respond to recent controversies regarding catcalling; the Minister of Equality, Ms. Irene Montero, recently spoke to this effect.

A mitigated type for the offense of sexual assault is also introduced, replacing the prison sentence with community service of six to twelve months. The draft bill clarifies that this type will be applied exceptionally and always taking into account the circumstances in which the offense was committed.

In addition to the above, a specific aggravating factor is created for the offenses in this Title VIII, which will apply in cases where the perpetrator, prior to the assault, has overridden the victim’s will through the use of pharmaceuticals, drugs, or any other natural or chemical substance suitable for that purpose. This aggravating factor seems to specify the generic aggravating factor of treachery contained in Article 22.1, covering instruments or circumstances that have become common in the commission of these offenses.

Harassment Will No Longer Require “Serious” Harm.

The current wording of Article 184, which covers the offense of sexual harassment, requires that an “objectively and seriously intimidating, hostile, or humiliating situation” be caused to the victim. According to the letter of this provision, to punish for sexual harassment, a degree of gravity is required in the defendant’s actions, which, if not found by the court, would exclude the application of this criminal category. Consequently, it would not adequately punish the harasser’s conduct and therefore would not provide a valid response to the disturbances the victim suffers in their daily life.

With this new wording, the word “seriously” would be removed, eliminating this nuance from the objective type and therefore expanding the coverage of this criminal category to more situations deserving of legal protection.

Sexual Violence Courts

This new text opens the door to the creation of specific courts for offenses of a sexual nature. Here, the government sets a maximum period of one year to “review the competencies of the Courts of Violence Against Women, the Prosecutor’s Office, and technical teams, with the aim of seeing if they can assume said specificity.”

This is intended to provide an agile and specialized response to situations of special gravity where there is often a risk of recidivism.

Other Non-Criminal Measures to Combat Sexual Offenses.

In addition to the above, non-criminal measures have been proposed, such as the implementation of policies aimed at awareness and prevention of these reprehensible behaviors, although specific measures are not detailed.

In the same vein, seeking comprehensive protection for the victim, the new law would seek to guarantee access for victims of these offenses to public financial aid.

Another measure, the most visible of all, is the creation of a Network of Comprehensive Personalized Information and Assistance Services, composed of numerous centers distributed throughout Spanish territory. These centers will remain open twenty-four hours a day and are intended to be “crisis centers,” in the words of the minister herself, focused on care from the first moment after the commission of the criminal act and subsequent follow-up. These centers must, in any case, provide psychological, social, and legal assistance to the victims who attend them.

The draft also provides for the possibility that, if the perpetrator and victim are legally married, the divorce between them may be resolved in the same criminal process. Thus, the victim does not have to resort to a divorce process before the civil jurisdiction, and measures typical of a divorce process, such as the attribution of the marital home, can be taken more quickly; these seem fundamental in such cases. It is also intended to include in criminal legislation the obligation for anyone convicted of these offenses to compensate their victim for the damages caused, a measure that until now does not appear in the literal wording of our Criminal Code.

Impact on Other Laws

Apart from the modifications that would arise from the creation of specialized sexual violence courts, which would be multiple and too extensive to cover in a few lines, the approval of this legal modification would bring changes to the Military Criminal Code to stiffen penalties in line with the Criminal Code, and to the Immigration Law so that there can be no deportation while a process for any of these offenses is being resolved. Special attention must be paid to this last aspect, as it could ultimately lead to the use of this legal protection contrary to the law by immigrants in an irregular situation, in order to delay or avoid their deportation.

Current Status.

This text has been approved by the Council of Ministers; it must then be submitted to the opinion of consultative bodies to return to the Council of Ministers and subsequently be approved by the Chambers. No vacatio legis period is introduced in this text, so if approved, four to six months will still pass until its entry into force.

Author: Francisco Javier Paredes.

Date: March 5, 2020

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