Thursday, March 28

The keys to the ‘only yes is yes’ law: the crime of abuse disappears and there will be 24-hour care centers


Congress has just definitively approved the Organic Law of Comprehensive Guarantee of Sexual Freedom, the so-called law of the only yes is yes’, after a long procedure that has focused attention on the reform of the Penal Code or prostitution, which was finally left out of the text due to discrepancies between the groups. But the criminal part of the law, which ends the distinction between assault and sexual abuse, the latter a crime that disappears, is accompanied by measures of prevention, care and reparation for victims. These are its main keys:

Group aggression or under chemical submission: the new story of sexual terror for women

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Any act without consent will be sexual assault

The norm modifies the Penal Code and subsumes the crime of sexual abuse in that of aggression. The objective is to adapt to the Istanbul Convention, which requires that the regulation of sexual crimes be based on consent and not on other elements. Currently, for sexual assault to occur, violence or intimidation is required, while if these requirements are not met, the act is considered abuse. The new law ends this difference, so that any act without consent will be considered sexual assault.

how are the sorrows

As for the penalties, sexual assault without penetration goes from between 1 and 5 years in prison to between 1 and 4, while if there is penetration – here the term rape is maintained – the range goes from between 6 and 12 years to between 4 and 12. The text understands that the formula implies a broader and progressive range designed to bring together all the behaviors that result from combining aggression and abuse, for which the Penal Code currently associates less punishment. In addition, an attenuated type of sexual assault is established with penalties of one year in prison or a fine of 18 to 24 months.

Chemical submission will be aggravating

The crime of sexual assault will have different aggravating factors. Some new ones are added: if the aggressor is a partner, ex-partner or relative of the victim or if he uses drugs to override the will of the victim. Currently these cases are automatically classified as sexual abuse because the victim being unconscious, does not mediate the violence and intimidation required by law to qualify as assault. Now they will become aggravated sexual assaults.

In addition, the acts that are accompanied by “extremely serious violence” or “particularly humiliating acts” will also be more harshly punished. The aggravating circumstance of group aggression remains as it is now in the Penal Code. However, now it does not exist for sexual abuse, so with this law it can be applied to any assault. When there are aggravating circumstances, the range of penalties will go from 2 to 8 years if there is no penetration (currently 5 to 10) and from 7 to 15 when there is penetration (currently 12 to 15).

The consent

The text makes explicit what is meant by consent, that is, it translates into criminal terms the already classic motto ‘only yes is yes’, which the Supreme Court endorsed in the sentence of ‘the herd’. And it goes like this: “It will only be understood 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.” The underlying idea is that silence is not a yes, if there is no clear expression of will, there is no consent and the absence of will or movement is not the same as having it.

A crime of street harassment

The norm incorporates in the Penal Code a crime of harassment that aims to prosecute what is commonly known as “street harassment”. It is a minor crime that will punish those who “address another person with sexual or sexist expressions, behaviors or propositions” when “they create an objectively humiliating, hostile or intimidating situation for the victim, without constituting other more serious crimes.” ”. In this case, penalties of a fine, permanent location or work for the benefit of the community will be imposed.

specialized courts

Sexual crimes will be the responsibility of specialized courts, that is, with judges and prosecutors trained for it. However, the law gives a period of one year to submit a project to amend the Organic Law of the Judiciary and the one that regulates the Organic Statute of the Public Prosecutor’s Office. The objective is to review the competences of the Courts of Violence against Women and decide how this specialization is done: whether to expand them or create new courts.

It also provides for initial and ongoing training for all operators involved in a sexual assault procedure: judges, prosecutors, forensic experts or State Security Forces and Bodies. The Comprehensive Forensic Assessment Units (UVFI), which currently issue reports only for cases of abuse within a partner or ex-partner, will expand their powers for cases of sexual violence.

24 hour centers

A network of comprehensive care services will be created for victims, both by telephone and in person. Currently, these types of resources are scarce and in some communities they do not even exist. They are the so-called 24-hour crisis centers, designed to serve victims 365 days a year in an interdisciplinary manner. The objective of the Government is that there be at least one per province in 2023, for which it has already enabled two credit transfers to the communities, the last one this week.

It will not be necessary for the victims to denounce

Going to the judicial system will not be an essential requirement to be officially accredited as a victim and access the rights and aid provided by law. It will serve with a report from Social Services, health or specialized centers. This is what is currently happening with victims of gender-based violence.

Suspension of expulsion with complaint

Women in an irregular situation cannot be deported, but in this case, they must file a complaint so that their expulsion file is paralyzed. A forecast that until now did not exist. They will also be able to access a residence or work permit, but as long as they have a protection order or a report from the Prosecutor’s Office. To maintain this right, the criminal process must end with a conviction or a court decision “from which it is deduced” that the woman has been a victim.

sexual femicide

It incorporates in the scope of application, for “statistical and reparation” purposes, sexual femicide, “the most serious violation of human rights linked to sexual violence, which must be made visible and to which a specific response must be given” . The law defines it as “homicide of women and girls linked to behaviors defined as sexual violence”, that is, those included in the norm: sexual assault, sexual harassment, female genital mutilation, forced marriages or trafficking for the purpose of sexual exploitation.

Aid for victims

As is already the case with victims of gender-based violence, those of sexual violence will also be able to access financial aid equivalent to six months of unemployment benefit if they earn less than the minimum wage. They will also have priority access to the public housing stock.

A specific route for minors

The law creates specialized and adapted services in which to attend to minor victims in all aspects: psychological, educational, legal… The idea is to implement the model of the so-called “children’s houses” widespread in other countries. These become the place of reference and all the professionals involved in the case move there, so that the minor is not subjected to the journey that he or she is normally forced to go through.

The axis of prevention

The rule provides that the educational system must include content on sexual education in sexual equality and diversity depending on the age of the student, as well as protocols to prevent and detect this violence. The different Administrations must launch institutional campaigns, especially focused on combating “gender stereotypes and false beliefs” about the victims.

The financing of the State Pact

The law reforms the 2004 law on gender violence to incorporate the right to reparation for victims and the concept of economic violence. In addition, it will shield the financing of the State Pact against Gender Violence: with the aim of “guaranteeing the financial stability” of the policies developed in this framework, the Government must “guarantee the financing system articulated” by it through the items budget for ministries, communities and municipalities.

And what about prostitution?

The text initially included two articles referring to locative third parties and pimping that practically did not see any party with good eyes: the vast majority asked to eliminate them while the PSOE claimed to toughen them. The norm was about to get frustrated by this matter, but finally the parties reached an agreement to withdraw them. However, the law is also directed at victims of sexual exploitation and trafficking, considers advertising about prostitution illegal and will launch campaigns to discourage their demand.



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