An unexpected script twist keeps the so-called law of ‘only yes is yes’ up in the air. The Senate is currently studying whether the rule is definitively approved or if it is returned to Congress after having given the green light to an amendment that, in reality, does not modify the text that was being debated this Tuesday at all. The motion had already been incorporated as is by the deputies during the process in the Lower House.
The president of the chamber, Ander Gil, announced at the end of the vote that the law was not definitively approved this Tuesday, but that he would have to transfer the amendment to Congress. However, after that moment, confusion has spread through the Senate. Sources from the parliamentary groups have said that the lawyers of the Chamber have begun to evaluate whether the law should, in fact, return to Congress after an innocuous amendment has been voted.
The point is that, against all odds, a majority of senators have supported that amendment, so, according to the regulations, the rule returns to Congress for final approval. The modification has been presented by Junts, and it has been joined by the rest of the nationalist group, the Popular Party, three senators from Ciudadanos, the senators of the Confederal Left and the Esquerra-Bildu group. However, it does not change the articles at all, but rather it is an amendment that reproduces something that is already contemplated as such in the law because it was introduced in Congress.
The Organic Law of Comprehensive Guarantee of Sexual Freedom It aims to cover the absence of public policies in Spain to combat sexual violence and designs a framework of comprehensive measures in the style of the one that already exists since 2004 for gender violence. PP and Vox, who have voted against the norm, have tried to overthrow it through vetoes, but have been rejected. Even so, the popular ones have achieved by joining the Junts amendment that the rule is not yet approved. In fact, Senator Javier Maroto has celebrated on Twitter that the norm has to return to Congress.
After last week the Senate Equality Commission showed its support for the law by rejecting the amendments presented, the plenary session this Tuesday has given the green light to one of them. Presented by Junts per Catalunya, it is a paragraph of the preamble of the law that specifies what contents are included in title II of the same, but it does not change anything because the norm came as it is from Congress. And pray the following:
“Title II provides for actions for the prevention and detection of sexual violence as a fundamental basis for its eradication. Thus, Chapter I provides prevention and awareness measures against sexual violence in the educational, health and socio-health, digital and communication, advertising, labor, Public Administration and military fields, as well as in residential and deprivation of freedom; while chapter II provides for the development of protocols and training for the detection of sexual violence in three fundamental areas: education, health and socio-health, in order to identify and respond to the most hidden sexual violence, such as female genital mutilation, the detection of cases of abortion and forced sterilizations”.
The Minister of Equality, Irene Montero, has attended the plenary session thinking that it would be definitively approved. She thanked the feminist movement for its push, of which she said the Government received the mandate to convert the ‘sister, I believe you’ and ‘it’s not abuse, it’s rape’ into a law “that would be capable of effectively protecting all women”. Montero has recognized that “there is a long way to go to end sexist violence” and has assured that the Executive “is not complacent”, but has assured that with the norm, Spain “takes a decisive step to combat sexual violence”, that “places us, just like the one in 2004, at the international forefront”.
The rights try to knock down the norm
The rights have once again tried to prevent the law from going forward through the defense of their vetoes, which have been rejected. The extreme right of Vox has once again replicated the negationist message that it already raised in Congress and has branded it an “ideological law” that intends to “criminalize” and “foster hatred of men and the indoctrination of our children”, he has assured Jose Manuel Marin For her part, the popular Adela Pedrosa has accused the Government of “using the victims” who “are not going to improve their protection” and has charged against the “legal technique” and the “questionable constitutionality” of the text.
The rest of the groups have responded to this, lamenting Vox’s “machista discourse based on inequality”, according to the socialist senator Elena Diego, who has warned the extreme right: “Be careful, you are doing a lot of damage with your discourse because they reach young people easily, they know it and they do it”. “Feminism does not uphold the supremacy of women over men, but at its center is life and equality against fascism,” replied Pilar González, of the Confederal Left, who has claimed the need for the law as “a first step, not a goal”.
A good part of the interventions have served to confront the discourses of the right. This has also been done by the ERC-Bildu Parliamentary Group in the mouth of Senator Sara Bailac, who has lamented the use that the extreme right makes of crime to pursue what is commonly known as street harassment that it introduces into the law. “They accuse us of pursuing compliments and they go looking for the cartoon, but when I read it [este artículo de la ley] I think of my friends locked in their car watching a guy masturbate in the window and similar situations that women have had to endure and that have gone unpunished.
The ‘only yes is yes’ in the law
Some of the groups have lamented the dilation of the law and the disagreements that it generated within the Government, both when leaving the Council of Ministers and at the end of the process on behalf of prostitution, which finally caused the articles related to this question will be left out. However, the germ of the standard dates back six years. It was the rape committed by ‘the herd’ in the Sanfermines of 2016 and, above all, the sentence that two years later ruled that it had been a sexual abuse and not an assault, which opened an unprecedented debate in Spain that became an outcry feminist.
The case worked as a catalyst for thousands of women to break the silence about sexual violence and helped denounce their re-victimization and focus on justice and the Penal Code, which the law reforms. The goal is to inaugurate a paradigm shift in line with what the Istanbul Convention requires: sexual abuse will cease to exist; any act without consent will be considered sexual assault. There will be an attenuated type depending on the less seriousness of the act and also several aggravating factors such as the use of drugs, if the aggressor is a partner or ex-partner of the victim, if it is a group or if there is “extremely serious violence” or “acts especially humiliating”.
This implies that it will no longer be necessary to prove violence and intimidation, which is the condition required by law for sexual assault to take place, and which is often interpreted strictly by the courts. Proof of this are the judicial vicissitudes of the violation of ‘the herd’. The same facts were interpreted as sexual abuse, that is, without violence and intimidation, by the Provincial Court of Navarra, as consensual sex by Judge Ricardo González, who questioned the credibility of the victim, and finally as sexual assault by the judge. Supreme Court.
With the same Penal Code in hand, the current one, there are judges who see violence and others who do not, and the margin for interpretation will continue to exist, but the law intends to support a way of judging sexual violence based on “only if it is yes” and avoid the requirement of active resistance from the victim to decree that there was a sexual assault. And in this line, the law incorporates a definition of consent. Basically, this new way of understanding it points out that silence is not a yes, if there is no clear expression of the will to have sexual relations, there is no consent and the absence of will or movement is not the same as having it. .
But the law goes far beyond penal reform. The objective is that sexual violence is conceived in Spain as a social and structural problem that disproportionately affects women. To do this, it deploys a range of measures in all areas, including the continuous specialization of all legal operators or the creation of a network of 24-hour comprehensive care centers. It also contemplates public prevention and awareness policies, sexual education in the classroom and protocols to prevent and detect this violence.