Spanish Cabinet takes first step toward major overhaul of sexual assault laws

The Spanish Cabinet on Tuesday took the first step toward approving new legislation covering sexual violence. The new law, which has been prepared by the Equality Ministry, will see the controversial offense of “sexual abuse” disappear, and will focus in particular on the issue of consent, which is defined as a free manifestation of the will to “participate in the act,” ministry sources explained.

The draft law was presented today after the weekly Cabinet meeting by the equality minister, Unidas Podemos politician Irene Montero. The legislation covers women who are of or above the age of consent in Spain, 16 years old, and who have suffered sexual violence, female genital mutilation, forced marriage or sex trafficking.

The comprehensive law pays particular attention to the prevention of sexual offenses, and includes education on equality and diversity

The legislation underwent a series of changes as recently as Monday, after it was debated with other ministries – in particular the Justice Ministry required modifications. The law includes changes to the Criminal Code, such as the classification of street harassment as a misdemeanor, punishable by house arrest, community work or a fine, and also includes planned changes for the sentencing of sexual offenses.

The comprehensive law pays particular attention to the prevention of sexual offenses, and includes education on equality and diversity in all levels of the education system. The draft legislation sets out a time frame of a year to decide whether gender violence courts should judge a particular case or if they should be passed to other specialized tribunals, ministry sources added.

Until now in Spain, a sexual assault – i.e. rape – had to include an element of violence or intimidation. If the courts could not find evidence of such factors, the offense would be classed as sexual abuse. This has caused controversy in recent years in Spanish court cases, not least during the first trial of the infamous Running of the Bulls case, where a group of Spanish men were found guilty of the lesser charge of sexual abuse of an 18-year-old despite a wealth of evidence against them. That decision was later overturned by a higher court.

Minister Montero explained at Wednesday’s press conference that there will have to be “an explicit expression by the woman” indicating consent

Under the new law, the focus will be on consent. Minister Montero explained at Wednesday’s press conference that there will have to be “an explicit expression by the woman” indicating consent, one that is “not necessarily verbal.” Sexual assault will be classed as “any act against the sexual freedom of another person without their consent.”

Sexual assault will be punished with prison terms of one to four years, compared to the current sentence of one to five years or a fine. The Criminal Code reforms will see rape (via penetration, although not necessarily with violence) carry prison terms of four to 10 years, compared to the current four to 12. Ministry sources said that the sentences were aimed at being more proportional, and that despite reductions in sentences, the more serious offenses will be punished as much as they are currently, given that the aggravating circumstances will compensate the modification of the prison terms.

New aggravating circumstances will include cases where the perpetrator is the partner or former partner of the victim, or used substances to drug the victim. Other factors will include if the sexual assault is carried out by a group, if there is degrading treatment, extreme violence, or if the victim is particularly vulnerable.

The law will also raise the punishment for sexual harassment, which will go from three to seven months or a fine, to six to 12 months, with a maximum of 24 months in the most serious cases.

After having been approved by the Cabinet in its first reading today, the legislation will now be subject to a number of reports from bodies such as the CGPJ legal watchdog, before it is sent back to the Cabinet and then passed to the Congress of Deputies for debate.

English version by Simon Hunter.