ANGLÈS CRIMINOLÒGIC

SEXUAL OFFENCES AGAINST ADULTS

This presentation provides an overview of sexual crimes, victim protection measures
incorporated in the "Only yes is yes" law, and the principle of retroactivity favorable to the
defendant.

INTRODUCTION TO THE ISTANBUL CONVENTION

The Istanbul Convention is a Council of Europe treaty designed to prevent and combat violence
against women and domestic violence.
The Convention was signed by Spain in 2014 and ratified in 2019.
This Convention establishes provisions related to non-consensual sexual acts.

THE DEFINITION OF SEXUAL CONSENT

The Istanbul Convention defines sexual consent as being given voluntarily as a manifestation of
the free will of the person considered in the context of surrounding conditions.
Sexual consent must be clear and unambiguous.

HOW THE ISTANBUL CONVENTION AFFECTS SPANISH LAW

The Convention obliges parties to adopt legislative or other measures necessary to classify non-
consensual sexual acts as a crime, when committed intentionally.
Spanish law has been reformed to meet the standards of the Istanbul Convention.

SEXUAL ABUSE CRIMES IN SPANISH CRIMINAL CODE 2015

Divided into three groups according to age of the victim: under 16, minors between 16 and 18,
and adults.
For minors between 16 and 18 years old, consent was invalid if the aggressor could influence
the victim.
In cases of adult victims, there had to be a situation of superiority for lack of consent to be
established.

CASES OF SEXUAL VIOLENCE: LA MANADA

Members of “la manada” were initially sentenced to 9 years imprisonment for gang-raping an
18-year-old woman who was under the influence of alcohol and drugs.
This sentence was later increased to 15 years imprisonment by the Supreme Court.

THE “ONLY YES IS YES” LAW

The “Only Yes is Yes” Law is a Spanish law which unifies the criminal types of abuse and
aggression into one. The law requires explicit consent to any sexual activity.
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SEXUAL ASSAULT CRIMES IN CRIMINAL CODE 2022

Single crime of sexual assault, divided into two groups of victim age: under 16 and over 16.
Consent is never valid for victims under 16 years old.
For victims over 16 years old, there must be clear expression of consent.

SEXUAL ASSAULY VS. SEXUAL ABUSE

Before the “Only Yes Is Yes” Law, the Spanish Criminal Code distinguished between sexual abuse
and sexual assault.
Sexual abuse referred to non-consensual sexual conduct without violence or intimidation, the
latter involved violence and intimidation.

ABOLISHMENT OF TACTIC CONSENT

The “Only Yes Is Yes” Law eliminates tacit consent.
In the past, Spanish courts sometimes assumed consent where the alleged victim did not
physically resist or say “no”.
This acknowledges the reality of situations in which victims may feel unable to express their lack
of consent.

LACK OF CONSENT
Sexual assault no longer requires violence or intimidation, but only lack of consent.
Sexual acts performed on a victim without their clear and unambiguous consent are considered
sexual assault under the new law.

CONFUSING MESSAGE TO THE PUBLIC

New law puts the consent of the victim at the center of sexual assault crimes.
Lack of consent of the victim is the substantive element of these crimes.
While putting consent at the center of sexual assault crimes is important, it can send a confusing
message to the public.
This is because the absence of consent has always been an element of these crimes and is
necessary to establish the illegality of the act.

PROTECTION FOR VICTIMS OF SEXUAL CRIMES

The modification of the Criminal Code aims to increase protection for victims of sexual crimes.
It incorporates a whole system of comprehensive protection measures for victims of sexual
crimes (economic, social, labor, judicial, psychological and psychiatric care, specialized training
for operators who work in this area, etc.).
Prevention and awareness measures are also integrated to design victim public policies focused
on a better and more adequate protection of victims.
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Spanish victims of sexual crimes can find support and resources through organizations such as
Instituto de la Mujer y para la Igualdad de Oportunidades, Servicios Sociales, and Fundación Luz
Casanova.

SEVERITY OF PENALTIES
Previous regulations varied the severity of the penalty based on the presence or absence of
"violence or intimidation" in addition to lack of consent.
Current law does not rely on these factors for determining severity of punishment, except in
cases with extremely serious violence.
Any attack against sexual freedom is now qualified as "sexual assault".

RETROACTIVITY FAVORABLE TO THE DEFENDANT

The principle of retroactivity in favor of the defendant is established by Article 2.2 of the Criminal
Code.
Criminal laws that favor the defendant will have retroactive effect, even if a final sentence had
already been passed and the subject is serving a sentence.
Review of the sentence may not imply imposition of more severe sentence for the defendant
who requests it.

HIDDEN CRIME Victims usually do not report it

Great tolerance in our society towards rape in intimate relationships.
Example: rape in marriage was only criminalized in Spain in the 1980s. It is still allowed in 53
countries in the world (UN).
Victims of sexual aggression seldom report the incidents to official sources. There is an INVERSE
RELATIONSHIP between the victim-offender relationship and help-seeking behaviour.
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VOCABULARY:
- Sexual violence includes any sexual act enforced upon a person's sexuality using
coercion, without consent, or through unwanted sexual comments or advances.

- Rape includes sexual intercourse achieved without consent, through force, coercion,
deception, or while the victim is impaired or unconscious.

- Attempted rape: Attempted unwanted sexual intercourse arising from use of threats of
force or the use of drugs/alcohol.

- Gang rape: Rape of a person by two or more perpetrators.

- Sexual contact. Fondling or kissing after verbal pressure, misuse of authority, or use of
threats, drugs/alcohol, or physical force. Touching can be done with any part of the body
or with an object.

- Acquaintance rape. Rape in which the rapist is known to the victim.

• “Date rape" is a term colloquially used to refer to sexual assault by a person
involved in a romantic relationship with the victim. Unfortunately, the
reference to date rape can lead to the misperception that the rape isn't a
"true" rape (in other words, forcible).
• Marital rape. Forced sex that occurs between a couple either when living
apart but still married, when married and living together, or even when
living together but not married.

- Perpetrator. A person who transgresses law. Other terms are: aggressor, assailant,
rapist, abuser, victimiser, offender

- To lead on. To sexually provoke someone. She led him on with her dance.

- To misread, to misinterpret. He misread her intentions.

- To mean it. She said she did not want to have sex with me but she didn’t mean it.

- Sexual Advances. Sexual suggestions, sexual offers.

- To go steady. To date one person exclusively and frequently. They've been going steady
for three years now.

- Petting. To engage in amorous embracing, caressing, and kissing.