Spanish Lawyers specializing in sexual crimes all over Spain
Legal definitions of ‘rape’ vary according to times and places. However, it is generally defined as forced sexual intercourse without the victim’s consent. Rape has been characterized as ‘torture that uses sex as a weapon’ by Helen Benedict. Most sexual assault victims feel that their rapist has killed a part of them. The sexual act takes something away from the victim who can never fully recover from this. Next to severe emotional trauma victims may suffer, they can also be subjected to genital and/or other physical injuries.
Spain is to introduce a ‘Yes Means Yes’ (‘Solo Si Es Si’) law on consent aimed at removing ambiguity in cases involving rape. According to this proposed law, consent would need to be explicit. As its wording states: ‘yes means yes’. All other forms of communications, including silence, would amount to a refusal. As a result, sex without explicit consent would be considered as rape in the eye of the new law. As put forward by Carmen Calvo, who is the Spanish Equality Minister, this is to ensure that rulings in sexual assault cases are not left open to the interpretation of the judges. The reform would bring Spanish legislation in line with other European countries, such as the United Kingdom, Ireland, Iceland, Belgium, Luxembourg, Germany, Cyprus and Sweden, being the last country so far.
Article 375 of Belgian Criminal Code provides the following:
‘Any act of sexual penetration, regardless of its nature and by whatever means, committed against a non-consenting person, represents a crime of rape. Consent is not considered to have been given, if the crime is committed by violence, coercion or deceit, or is made possible by the infirmity or physical or mental impairment of the victim.’
Under English law, rape is a statutory offence contained in Section 1 of Sexual Offences Act 2003:
‘(1) A person (A) commits an offence if-
He intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
B does not consent to the penetration, and
A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.’
It is clear from the above provisions that the notion of consent is required.
The emergence of this proposal emanates from the heated debate following the judgment in the La Manada (‘Wolf Pack’) case, in which five men were accused of having sexually assaulted an 18-year-old woman, which occurred during a famous festival in Northern Spain. The assault was filmed, in which the young woman appeared to have a silent and passive attitude throughout the scene. The three-judge panel interpreted this as consent. It, therefore, ruled that the men were not guilty of rape, but instead convicted them with a lesser charge of sexual abuse. Spanish law makes a distinction between sexual assault or rape (Article 178 Spanish Criminal Code) and sexual abuse (Article 181 Spanish Criminal Code): sexual abuse differs from rape in that it does not involve violence or intimidation. Following the judgment, thousands of protesters took the streets and claimed the act constituted rape.
If the bill were to be approved by a majority of lawmakers in Parliament, this would tighten Spain’s legislation on sexual assault. Consent would have to be given in a genuinely and voluntarily manner, whether verbally or physically, according to Patricia Faraldo who contributed to the draft of the bill. At first sight, it might seem harsh for the defendant, given that it entails a lowering in the burden of proof on the applicant’s side. Spanish lawyers and prosecutors would no longer need to prove beyond reasonable doubt that there was violence or that the victim was exploited in his or her vulnerable position in order to establish rape. Evidence demonstrating that the sexual act was non-consensual would be sufficient to prove for a Spanish lawyer in a court in Spain. Consequently, this places a great burden of proof on the part of the accused. How to prove that consent was obtained? Would that mean that as a practical matter, you would better have a signed form of consent? It can be that you are having silent sex -without expressly saying ‘yes’ at least- while absolutely consenting to it. Under the proposed law, most of us, if not all of us, would have engaged in rape and would have been the victim of rape as well.
On the other hand, in Sweden where there is already a similar law in force in the country, the Swedish Bar Association argues that the new legislation has not lowered the burden of proof since the prosecutor or lawyer has to prove that a crime was committed and has to prove intent. Ultimately, this would not result in an increase of convictions for rape.
Even though the new law requires express consent, the standard of consent is still disputed and may lead to misunderstandings. In particular, in the event of non-verbal consents, this would still leave room for judicial interpretation on whether consent was given or not. A clear and unambiguous definition of what constitutes express consent should be provided. However, it is hard to imagine how this would be implemented in practice, as there will always remain some grey areas. Further to this, when it comes to demonstrating whether or not there was consent, the judge may end up scrutinizing the victim more than the accused, declared Eithne Dowds, law professor at Queen’s University in Belfast. The ability to consent to sex becomes even more complex where the complainant has mental health issues. Faced with such confusion and ambiguity, judges may treat the only explicit verbal agreement as sufficient proof of consent and this will inevitably result in judicial errors.
Nevertheless, the new law could be of particular relevance in the case of date rapes. Date rapes are situations in which drugs are used as a substitute for physical force to facilitate sexual assault against the unwilling consent of the victim. Although alcohol is the most common drug used to facilitate date rape, Gamma hydroxybutyrate (GHB), ketamine and Rohypnol are the three main kinds of drugs referred to as date rape drugs. Since those substances can easily be dissolved in drinks, victims of date rape consume them without being aware they are being drugged. As a result of being intoxicated, the victims are unable to express their disagreement. Victims of drug-facilitated sexual assault can be said to be victims of a double crime: in addition to being drugged, they are also being sexually assaulted. Unfortunately, it may be that due to intoxication, the victims cannot remember the identity of their aggressor.
In a nutshell, the analysis showed above demonstrates that even though the ‘Yes Means Yes’ law is a good step for an enhanced protection for victims of rapes, it remains far from clear and unambiguous. It is true that all rapes should not go unpunished. Nevertheless, for all crimes, a balance must be struck between the prosecution of crimes (security) and the protection of rights (liberty). From the outside, it seems that the legislation tends to be in favour of the victim’s protection, as it affords him or her with a high level of protection. Some believe that there will be an increase in the number of convictions for rape since the innocent would also be charged for rape in case he or she did not obtain a genuine and clear consent from his or her partner. It is true that if the bill enters into force, Spanish legislation on sexual assault will be tightened. However, when taking a closer look at it, not everyone will be able to accuse someone else of rape at his or her will. The applicant will still have to prove intent and that a crime was committed. It will then be up to the defendant to prove that he or she obtained consent.
Since the proposed amendment is very controversial, another potential solution would be to add to this ‘Yes Means Yes’ approach reliable and certain evidence, such as medical and psychological reports. As Sir Matthew Hale stated in his 17th century opinion, ‘rape is an accusation easily to be made and hard to be proved’. Corroborating evidence of physical injuries and/or psychological trauma should be mandatory to prove sexual assault was committed. Moreover, to call on expert-witness to testify about the impact of the crime on those victims are needed as a matter of science and fact and law. The burden of proof lies with the victim would then be discharged and if such evidence is the result of expertise and science, it will hardly be possible for the defense to contest it.
Rape has always been and will remain a sensitive issue on which consensus is extremely difficult to reach among the European countries. However, strengthening the laws on sexual assault will -at least we hope- lead to a better recognition of and more justice for these crimes. The legislators have to guarantee that the sanctions be effective enough, meaning that they should have a deterrent effect on those committing sexual assault.
Article by Alicia Hendricks
Piñera del Olmo Law Firm – Lawyers in Spain