Spain’s socialist government proposed the ‘yes means yes’ law after the recent outrage over the ‘la manada’ (wolf pack), gang rape case where an 18 year-old woman was brutally gang raped by five men during a bull-running festival in 2016. Under the law, consent would have to be explicit. It states that “yes means yes” and anything else, including silence means no. Sex without explicit consent would therefore be considered rape under the country’s penal code.
The measure comes following widespread protests throughout the country in response to the “wolf pack” case where an 18 year-old woman was gang raped during a bull running festival. Two of the men filmed the assault during which the woman is silent and passive. The accused- José Ángel Prenda, Antonio Manuel Guerrero, Ángel Boza, Alfonso Jesús Cabezuelo and Jesús Escudero recorded a cell phone video of the encounter. The case in known by the name of the WhatsApp group ‘la manada’, that the defendants used to share messages about the attack on the 18 year-old victim. In April, the accused were acquitted of sexual assault and were instead punished for lesser charges of sexual abuse and given a nine year prison term.
The three-judge panel heard the testimony that the men shoved her in the hallway and told her to “shut up” before engaging in sexual abuse. In the sentencing document, the victim was described as having “adopted a passive, submissive stance”, because she felt trapped and afraid. The judges interpreted this as consent and one of the judges even commented that she appears to be enjoying herself and the charges were reduced to lesser crime of sexual assault.
The case fueled demonstrations and international criticism because the three-judge panel did not permit videos or messages exchanged between the perpetrators which included drugging and raping the victim as evidence in the court of law. In Spanish law, prosecutors must demonstrate that violence was perpetrated against the victim or that the victim was in a vulnerable situation. Sexual abuse is not considered rape in Spain if violence or ‘intimidation’ is not included.
Spanish Deputy Prime Minister and Equality Minister Carmen Calvo Poyato said the ‘la manada’ case pointed out the need for a more specific sexual assault law in Spain when she unveiled the ‘yes means yes’ law.
“We cannot return to the situation where, via an interpretation, what is understood to be a serious crime is not considered such”, she added. Calvo introduced the legislation that would require perspicuous consent for sexual contact in a tandem as this would ensure “the autonomy, freedom and respect for a person along with their sexuality.” Spanish Prime Minister, Pedro Sanchez in his official statement said,
“To be clear, ladies and gentlemen, if they say no it means no and if they don’t say yes, it still means no.”
Patricia Faraldo Cabana, a law professor at the university of A Coruňa who helped Podemos (Spain’s political party) draft the legislation said the proposal understood consent not just as something verbal but also tacit, as expressed in body language. “It still can be rape even if the victim doesn’t resist”, she said.
“If she is naked, actively taking part and enjoying herself then there is obviously consent but if she’s crying, inert like an inflatable doll and clearly not enjoying herself then there isn’t.”
The law mirrors similar legislation that came to effect on July 1, 2018 in Sweden. Under the new law, the prosecutors need not have evidence of violence, threats or the exploitation of the victim’s vulnerability to secure a rape conviction. If Spain proposes the legislation, it will join the minority of nations in European Union that recognize sex without consent as rape- following the footsteps of UK, Ireland, Germany and Belgium.
As the #metoo movement is gaining momentum across the globe, many countries are re-evaluating how they define consent.
The alleged victim of the la manada trial wrote into a Spanish TV station encouraging other people to speak up about sexual assault.
“Don’t keep quiet because if you do, you’re letting them win”, she said.
“No one should have to go through this. No one should regret about having a drink, talking to people at fiesta, walking home alone or wearing a miniskirt”, she added.
This is a pellucid step towards preventing sexual violence. Spain will see a plummeting graph of sexual assault of women after the legislation. The law also needs to impose stringent and rigorous punishment for the crime as the judicial bench sees fit. Spain will also be an example to the countries who do not have similar laws for the protection of their women diaspora.