The law of “only yes is yes”

Most significant amendments to Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom. Known as the “only yes is yes” law.

Elimination of the distinction between sexual assault and abuse

As a first development, it’s worth noting that the “only yes means yes” law eliminates the distinction between sexual assault and sexual abuse. Therefore, all conduct that violates the sexual freedom of another person, committed after the date it came into force, that is, October 7, 2022, will be considered sexual assault.

Such behaviors are defined in articles 178 to 180 of the Penal Code. They are punishable by imprisonment of 1 to 4 years, and 4 to 12 years in cases of carnal knowledge and whenever the sexual assault involves persons over sixteen years of age.

In the event that sexual assault is committed against a person under the age of sixteen, the perpetrator shall be punished with imprisonment of 2 to 6 years, and 5 to 10 years if any of the forms of sexual assault described in Article 178 of the Penal Code are present.

Chemical submission as a form of sexual assault

Likewise, the new “only yes is yes” law expressly introduces chemical submission as one of the forms of sexual assault, through the use of substances or psychotropic drugs that override the victim’s will. Under the new law, such conduct can be punishable by up to 15 years in prison.

Furthermore, the reform includes the possibility of punishing anyone who, without being the person who administered the drug, takes advantage of a victim whose will is nullified by being under the influence of drugs, psychotropic drugs, or any other natural or chemical substance suitable for such purposes. Thus, anyone who takes advantage of the victim’s condition could be sentenced to a prison sentence of one to four years.

Online sexual harassment of minors (child grooming)

Also punishable is online sexual harassment of minors ( child grooming ), which consists of contacting minors under 16 years of age through the Internet, telephone or any other information and communication technology, to arrange a meeting, with the aim of committing one of the crimes against sexual freedom, or trying to trick them into providing pornographic material in which the minor appears.

Likewise, it’s worth mentioning that the new “only yes is yes” law contemplates a mitigated subtype whereby, given the lesser severity of the act and the personal circumstances of the person guilty of sexual assault, the prison sentence corresponding to the crime, in its lower half, or a fine of 18 to 24 months may be imposed. That is, sexual assault may be punished with monetary penalties rather than prison sentences.

However, the truth is that the aforementioned “minor” offense in crimes against sexual freedom was not contemplated before the reform. Therefore, since it is an indeterminate legal concept, it will have to be developed by the jurisprudence of our Courts as sentences are issued in application of the new “only yes is yes” law. Thus, it will be the Criminal Courts and Tribunals that, with their sentences, will define what types of sexual assault can be considered minor and, consequently, punishable with fines or prison sentences that, due to their length, may not entail actual imprisonment.

Similarly, this reform introduces a definition of consent that will have to be interpreted by the courts in practice when issuing sentences. Specifically, according to the current article 178.1 of the Criminal Code, ” consent shall only be deemed to exist when it has been freely expressed through acts that, given the circumstances of the case, clearly express the person’s will .”

This concept of consent presents more shadows than lights, as well as being extremely difficult to prove in practice and a risk of reversing the burden of proof in criminal proceedings.

Finally, it should be noted that the reform expands the range of crimes for which legal entities could be held criminally liable, including sexual harassment and crimes against moral integrity in the workplace.