What changes the “law of the only yes is yes”

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By Miriam Mejias

Madrid (EFE), has encountered a stumbling block: the revisions of sentences due to the reductions envisaged in certain sentences.

Considered one of the flagship projects of the Department for Equality, the law established that any sexual act without consent is assault, but it also brought a reduction in the scopes of certain sentences in their minimum sections which led the defense sex offenders to apply for a review of their sentence.

What changed the law of only yes is yes

Motivated by the wave of feminist protests after La Manada’s controversial ruling that considered the rape of a young woman to be sexual abuse and not assault – a resolution later amended by the Supreme Court – the new law s is focused on the need to regulate express consent in sexual relations.

Sexual abuse has been removed from the Penal Code and any sexual act without consent is already sexual assault, with penalties of up to 8 years if there are aggravating circumstances. If there is penetration, it is considered rape, with a maximum sentence of 15 years.

The regulation introduced new circumstances to aggravate the sentences – such as nullifying the victim’s will with medicine or drugs – but it also reduced the minimum sentences for certain crimes: for the accused of rape, a minimum sentence of 4 years is now envisaged, against the 6 of the old Penal Code, and in the event that the victim is under 16, it would be a minimum sentence of 6 years against 8 previously.

An aspect on which the General Council of the Judiciary (CGPJ) has already warned in a technical report -obligatory but not binding- in which it firmly opposes the hard core of the standard and warns against the indeterminacy of certain aspects of the law.

Dozens of convictions subject to review

This reduction of the lower sections of the sentences has already led to certain reductions of sentences for sex offenders by the Provincial Court of Madrid, the Superior Court of Justice of Galicia or the Superior Court of Justice of Murcia.

In the Balearic Islands there have been two releases for this reason and it is known that the Barcelona court issued a sentence a few days before the entry into force of this law in which it has already applied a lesser sentence to the accused in anticipating what the standard establishes.

In other courts, however, such as the court in La Rioja, there have been no changes in sentences among the 54 examined so far.

The legal experts consulted by the EFE do not doubt that there will be “many more” penalties to be reviewed because, they say, this is established by the Penal Code, which provides for the retroactive effect of those “criminal laws that favor the inmate”.

For now, in Madrid, the presidents of the fifteen sections of the Provincial Court will meet on November 25 to unify the criteria, and the General Prosecutor’s Office is studying, on a case-by-case basis, the revisions of sentences for offenders and if it deems it necessary. , it will prepare a circular to unify the criteria.

Do judges have discretionary power?

When the downward revision of certain sentences came to light on Tuesday, the government’s delegate against gender violence, Victoria Rosell, attributed these decisions to a “reactionary and surprising” reading of this rule by the judges, and defended a law that he considered “magnificent”. .”

However, the experts consulted by EFE warn that judges have little room for action because when reviewing a sentence, it is not possible to go into the substance of the facts judged, but simply to calculate the sentence. with the most favorable standard for the convicted person.

In other words, if the initial sentence does not mention attitudes of the aggressor such as abuse of superiority, now considered as aggravating circumstances, judges cannot take them into account in sentencing reviews, and if the court applied the minimum sentence to the aggressor in principle, now it is necessary to do the same, explain the experts.

“We cannot re-judge”, insists one of the lawyers consulted.

What happens if there is a new reform?

After the controversy that arose, the President of the Government, Pedro Sánchez, asked for caution so that the courts unify the doctrine before making a decision on the law “only yes is yes”, although equally they warn that modify the “legally” rule would be “a scandal” and “it’s not the solution”.

At the moment, the PP has already presented an initiative in the Senate to have the law revised by the executive, but if this were the case and it was reformed again, the jurists warn that the revisions of sentence already carried out will not could not be revoked, and it would only affect acts committed when the new regulation entered into force.

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