The new sexual freedom law provides for reducing penalties for assaults

The new sexual freedom law provides for reducing penalties for assaults

© carlos rosilo
Concentration against the sentence of La Manada in front of the Ministry of Justice, in 2018.

It is the first big measure of the Ministry of Equality and one of the commitments announced by the President of the Government: a law on sexual freedom that provides for transversal changes that range from the training of those who care for victims, to education, prevention or institutional response. The proposal, which the leading ministry Irene Montero last in these weeks because he wants to present the text on dates close to March 8, plans to eliminate the concept of abuse from the Criminal Code and reduce the penalties for aggression. In addition, it contemplates adding as aggravating both the violations within the couple and those that occur when the victim has annulled his will for having ingested drugs or drugs.

The new standard is based mainly in the bill that United We Can presented in July 2018 —which was called the Law on Comprehensive Protection of Sexual Freedom and for the Eradication of Sexual Violence, although that will not be the definitive name— and, to a lesser extent, on the recommendations that a group of specialists (the so-called general coding commission) sent the previous Government of the PSOE after the social upheaval that produced the case of La Manada, the rape of a young woman in Pamplona in 2016 by five men.

The initiative, in draft phase, may undergo modifications from now on its entry into the Council of Ministers. And also in the subsequent processing phase in Congress, where the PSOE coalition – United We Can is in the minority.

The consent

In the axis of the new law will be the consent of women, a consent “free, irrevocable and for specific practices” in which the mutual agreement and the right to decide on the body itself prevails, as reflected in the 2018 proposal and recommends the Council of Europe agreement on prevention and fight against violence against women and domestic violence, the so-called Istanbul Convention that Spain ratified in 2014.

The future law plans to eliminate the concept of abuse and consider all cases as sexual assaults, an idea that has been maintained since the revision of the Criminal Code with the La Manada scandal began. That change of philosophy, however, does not carry higher penalties. In fact, the penalties that are considered are reduced compared to those provided by the Criminal Code.

The minimum penalty for sexual assault in the new proposal, according to negotiation sources, is one to four years compared to the range of one to five years contained in the Criminal Code in its article 178. Aggression with penetration or assimilated (via vaginal, anal or oral or introduction of objects) will go from four to 10 years compared to the six to 12 years contemplated in the Code in article 179.

The intention, as explained by the team, is to banish the idea that “punitive” changes were requested. They argue that the feminist movement, the women who protested in the streets against the first two sentences of La Manada who condemned for abuse and not for rape, did not mobilize for the years of conviction or for the punishments to be higher. They asked that the victims not be questioned and defended that if five men corner and rape a woman in a small portal, there is violence and intimidation, as the Supreme Court finally recognized in that case.

The debate on penalties was also raised in the previous commission of experts. The jurists considered that the violation did not exceed the maximum penalty of the homicides, which involve 15 years in prison, except in accumulated crimes. Thus other aspects remain:

Group aggressions. The plan is to collect group aggressions as a new aggravating and not as a specific type as it came out in the proposal of United We of 2018. The Supreme Court indicated a path in the La Manada ruling that can be applied without changes: it was not a single violation and all those involved acted as “necessary cooperators” of the rest, which could have exponentially multiplied the penalties. This is what happened last December with the sentence of the Provincial Court of Burgos to three former soccer players of Arandina for sexual assault on a 15-year-old teenager. The penalty for each of them, not yet firm, is 38 years in jail – 14 for his aggression and 24 as necessary cooperators.

If you violate the couple. When the victim is or has been the wife or girlfriend of her sexual aggressor, it will be considered an aggravating factor, even if they had not lived together. As with consent, it is a change that responds to what is dictated by the aforementioned European agreement, the Istanbul Convention and which involves including the gender perspective in the regulations. It is a modification that it also included the codification commission proposal.

Drugged victims. Another of the aggravating factors that will be added is related to the aggressor nullifying the victim’s will by supplying drugs, drugs or any other substance that serves to do so.

Street Harassment It is one of the aspects that has generated more debate and whose inclusion is still being finalized. The initial proposal of United We collect punishes with fines or work to the community for those who direct in the public way to a person “propositions, behaviors or pressures of a sexual or sexist nature” that suppose an intimidating situation. This section is under review, sources explain the Executive, and is being readjusted because there has been jurisprudence since the proposal of the United We Can Law was presented until today.

“It’s about turning‘ I do believe you ’into public policy”

The proposed law with which the Government works, the one that United Podemos presented in 2018, goes far beyond changing the Criminal Code. It considers sexual violence as a violation of human rights and plans to combat it with transversal measures that help prevent cases.

The new regulations will include among its essential aspects the training of all professionals involved in the process of prevention of cases and attention to victims when attacks occur. That means reviewing, for example, the training of toilets that care for a woman, so that they can detect, assist and help rehabilitate victims. Or that of the State security forces that collect their complaint, who will also be instructed in issues with a gender perspective and in comprehensive protection measures against sexual violence, as in the judiciary. “It’s about turning‘ I do believe you ’into a public policy,” summarizes government sources. Among other reasons, to avoid the revictimization of those who, in many cases, suffer first from aggression and, secondly, because those who attend them are not prepared for it.

The project plans to broaden the powers of the courts on violence against women and the specialized prosecutor to also deal with causes related to sexual violence. And include prevention and awareness in the educational field, with the implementation of content on sex education for students at all levels from primary. All these aspects require specific economic funds that must be included in the budget impact report.


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