Explained: Spain’s ‘only yes means yes’ bill on non-consensual sex

The lower house of Span’s parliament Thursday passed the Guarantee of Sexual Freedom bill, popularly known as ‘only yes means yes’, which will make consent a significant determinant in cases of sexual assault. The bill, which is yet to be passed by the Senate, does not require the survivors to prove that they have been victims of sexual violence or assault.

Spain’s Equality Minister Irene Montero said on Twitter that finally the ‘only yes means yes’ bill is moving towards becoming a law. She added, “Women will finally have a law that guarantees their sexual freedom. The government and the feminist majority in Congress are here to make our country a freer place for women.”

What is the ‘only yes means yes’ bill?

If it becomes a law, the ‘only yes means yes’ bill will not require sexual assault victims to provide proof of sexual violence or physical resistance. In fact, it states that any sexual act without consent will be considered sexual assault.

The bill states that through it, Spain will be adapting a criminal law based on a model that will put consent at the centre. The bill also states that consent will only be accepted to have been given during a sexual act when the will of the person has clearly been expressed. Further, silence or passive agreement to a sexual act does not count as consent.

The current law requires sexual assault victims to show evidence of assault, intimidation or resistance.

Under the new bill, the definition of sexual violence has also been broadened in Spain. It will be considered as sexual violence in cases of “the female genital mutilation, forced marriage, sexual harassment and trafficking for sexual exploitation. Special attention will be paid to sexual violence committed in the digital environment, including the dissemination of acts of sexual violence, non-consensual pornography and sexual extortion through technological means.

The bill also states that rape and sexual assault crimes would be looked at under the same purview and treated with the same level of stringency.

In case, the perpetrator used a substance, like drugs or any chemical substance, to attain the will of the victim, it will also be punishable.

Regarding evidence, the bill states, “In order to minimize the procedures that could discourage the complaint or delay the protection of the victims, it has been decided to: contemplate other possible means of accrediting the violence, in addition to the conviction for the commission of a crime of sexual violence; The collection of biological samples from the victim and other evidence will not be conditional on the prior presentation of a complaint or the exercise of criminal action.”

The bill stipulates punishment for anyone who addresses “another person with expressions, behaviors or propositions of a sexual nature that create an objectively humiliating, hostile or intimidating situation for the victim, without constituting other more serious crimes”.

Moreover, it adds that non-consensual sex would be considered sexual assault and will subject the perpetrator to prison for up to 15 years.

It makes it mandatory for minors who commit sexual violence to undergo gender equality training and sex education. Also, under the bill, sex education will be mandatory at every stage of education with a special focus on the digital sphere so that men and women understand the importance of sexual freedom.

Further, sharing and resharing of intimate photos without consent would be punishable. Taking advertising into its purview, the bill states, “advertising that uses gender stereotypes that promote or normalize sexual violence against women will be considered illegal”. The bill also adds that any advertisement about prostitution will be banned.

In the bill, plans have been laid out to create 24-hour crisis centers for sexual assault victims as well as their families. The bill states that by 2024 there should at least be one crisis center in each province.

Other than this, specialized centers would be set up for victims who are minors, both boys and girls, and legal, educational, health and police professionals would work towards ensuring that these victims feel safe.

The ‘only yes means yes’ bill, which has been in the works since 2020, was passed in the lower house of the parliament with 140 votes out of 201. Only the Popular Party of Spain and the far-right Vox party voted against the bill.

Sexual assault and Spain

The bill that has been long supported by Spain’s Left-coalition government finds its roots in the outbreak which was sparked after the 2016 wolf-pack case where five men had been accused of gang-raping an 18-year-old girl.

After the incident, the five accused were convicted of sexual assault but not rape since the victim couldn’t present the evidence of rape and hadn’t explicitly objected to what was happening.

In a video of the incident, which was filmed by two men, the woman wasn’t seen objecting and was silent and the judges ruled this as consent.

As reported by Reuters, the sentences resulted in widespread protests in Spain where protestors asked Spain to join European countries that defined rape as non-consensual sex. Spain’s Supreme Court later the five men to 15 years of prison on rape charges.

Recently, there were two cases of two minors raping women that sparked concerns. In one case, a minor raped an 18-year-old girl, and in another, a minor raped and assaulted a 12 and 13-year-old girl.

As reported by BBC earlier this month, five teenage boys were arrested for allegedly raping two girls in Burjassot, Valencia.

In 2020, the United States Embassy in Spain had warned Americans traveling to Spain about the rising sexual assault cases in the country.

As per The Nomad Today, a Spanish news organisation, last year the Ministry of Interior of Spain released data indicating an increase in sexual assaults. From January to September last year, 12,638 sexual assault cases were reported, which showed a 27% increase from the previous year. The number of rapes reported in Spain was 1,601, which indicated a 30 per cent rise.

What laws do other countries have about non-consensual sex?

According to a report by Amnesty International, nine countries around the world have defined consensual sex in their laws. These countries consider sex without consent as rape.

These include the United Kingdom, Ireland, Belgium, Cyprus, Luxembourg, Iceland, Germany, Sweden and Switzerland.

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Other than this, three other countries which have amended their laws to define non-consensual sex as rape are Austria, Montenegro, and Portugal.

Defining any sexual act that is non-consensual as rape is also a part of the Istanbul Convention, which prevents and combats any violence including domestic violence against women.

The Istanbul Convention has been signed by 34 countries around the world, out of which Turkey decided to pull out of the last year.

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