As is well known, Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom, popularly known as the “only yes is yes” law, brought about a paradigm shift in sexual crimes by enshrining consent as the axis of sexual relations and unifying the traditional sexual abuse and aggression into a single crime of sexual aggression -imposing a single criminal framework for the wide range of conducts-.
Despite the fact that a broad sector of society enthusiastically received the new law, whose spirit was none other, as its Preamble recites, than that of “promoting the prevention of sexual violence and guaranteeing the rights of all victims”, its drafting has revealed the legislative technical deficiency that our laws sometimes present.
Proof of this is the problem that for months has been occupying and worrying the media, which, on a daily basis, report on the reviews of convictions in which the sentences of sex offenders are reduced. And, in spite of the fact that, at an initial moment, the Judges and Magistrates were singled out for such an inhuman decision, it is evident that these, as applicators and interpreters of the Law, limited themselves to applying the new Law which, due to carelessness, error or lack of knowledge of the fundamental principles of our legal system, had forgotten the principle of retroactivity of the most favorable sanctioning provisions.
Faced with this situation of social clamor and dispersion of criteria in the judiciary, the Attorney General issued last March 29 Circular 1/2023, on criteria for action by the Public Prosecutor’s Office following the reform of crimes against sexual freedom, detailing that prosecutors will report in their opinions on the non-admission of the review of final sentences when the penalty imposed in the sentence is also likely to be imposed under the new legal framework, allowing the review in exceptional cases in which “this rule causes manifestly disproportionate results”. However, in cases of convictions that have not become final, the parties, according to the Circular, may “invoke and the judicial body may apply the precepts of the new law when they are more beneficial to the defendant”.
Probably in the face of such an evident situation of legal uncertainty derived from divergent treatment by the Courts, the Supreme Court has set a Plenary Session to be held on June 6 and 7 to unify doctrine on reviews of final sentence convictions. It is not an easy task for the High Court, which will have to try to respond to and cover the multitude of cases that arise in practice.
At the same time, and after months of social and political wear and tear, on April 26 the bill for a new amendment to the Penal Code on sexual offenses was approved by the Senate and will enter into force once it is published in the Official State Gazette.
Although the new reform maintains the unification of sexual abuse and assault, an aggravated subtype is introduced – with a higher penal framework – for cases involving violence, intimidation or committed against a victim whose will has been overridden.
However, this amendment will not solve the problem of revisions of sentences since, as stated in its Preamble , “it is important to note that this reform can only be for the future, since the new regulatory reality has been consolidated, irreversibly, by the effect of Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom, both for crimes committed before the entry into force of this Organic Law and for those committed under its enforcement”.
An Italian proverb says that “wisdom comes from listening”. Probably if the legislator had listened to the warnings made by the General Council of the Judiciary about the impact of the “only yes is yes” law we would have avoided this devastating result.
Let’s hear more.
Marta Masip.