[TW: This article discusses rape and sexual assault, in links may also carry the same warnings]
Proposals for a change in Spanish law on the issue of sexual assault – the equivalent to rape – were introduced in March 2020. They were underpinned by the notion that the crime should be determined on consent, as opposed to violence and intimidation. This is off the back of a string of cases in which Spanish law has failed to achieve justice in the public eye, with many accused of sexual assault being acquitted. The proposals were kickstarted by the Supreme Court, taking the approach that “only yes means yes”, using the Istanbul Convention’s definition that “consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances.” This critical change was finally made following he series of cases causing public uproar.
Ms. Montero, a member of the Podemos Party, insisted that the plan is rigorous as it is “a law of the feminist movement, which has called for it and produced it in the streets for a long time”. She went on to say, for the first time, the law would recognise that sexual violence was gender violence, or as she described it, “macho violence”.
It is important to note that in the previous Spanish law, sexual assault was similar to rape in English law. To be convicted of sexual assault in Spain, violence or intimidation must have been used in the act. These are essential elements and without them, any action by the defendant cannot be sexual assault (rape) and will be considered to be a lesser crime of sexual abuse. This carries with it a reduced sentence, a reduced crime and label. Therefore, it is of the utmost importance to consider whether violence or intimidation were in fact used.
The Wolf Pack Case 2016
In 2016, the city of Pamplona was holding its traditional San Fermin bull-running festival. During, five men had unprotected sex with an 18-year-old woman, whilst stealing her phone and filming the attacks on their own mobiles. These videos were then circulated around their WhatsApp group chat called “La Manada” meaning “the wolf pack”. Thus, the nickname of the case was established.
Due to the law at the time, the accusers were not initially charged with sexual assault which required the use of violence or intimidation to constitute rape. The initial court in Navarra jailed the men for 9 years for sexual abuse instead; acquitting them of the graver charge of sexual assault as the woman had not suffered the essential violence nor intimidation. This was claimed by police reports of the videos depicting her as being “passive or neutral”, which in turn, sparked absolute outrage in the public, with demonstrations; protests; and cries for justice across the world.
It was later that the Supreme Court overruled the original verdict, now describing the victim as having been in a “genuinely intimidating scenario” and that her “passive and neutral” attitude was an act of submission. Additionally, the joint action of 5 men in total acted as an aggravating factor. As a result, each of the accused were sentenced to 15 years imprisonment, a restraining order of 500 metres from the victim for 20 years, and an increased compensation to £113,000.
The Second Wolf Pack Case 2018
This case was described as the “Manada de Manresa” meaning, “Manresa Wolf Pack”, for its similarities with the case two years prior. In 2018, a Barcelonan court decision to acquit 5 men accused of raping a 14-year-old girl on the charge of sexual assault, provoked public outrage.
The 5 men were guilty of abusing the girl during a drinking session at a disused factory in the town, Manresa, whilst she was under the influence of alcohol and drugs. One of the defendants was said to have told the others “it’s your turn. 15 minutes each, no delay”. All defendants denied the allegations, despite the DNA of one of the accused being found on the girl’s underwear.
The court ruled that because the victim was in an “unconscious state” and as the accused had not used violence, this could not amount to rape under sexual assault. The girl did “not know what she was and wasn’t doing, and consequently, did not have the ability to agree to or oppose the sexual relations most of the defendants had with her” reported Spanish newspaper, El Pais. Instead, the accused were charged with the reduced crime of sexual abuse, with 10-12 years imprisonment.
The Public Outcry
This of course, led to screams of justice from the public, and from influential figures:
- Barcelona’s Mayor, Ada Colau, denounced it as an “outrageous sentence” on Twitter, stating that “it is rape!”
- Social media users popularised hashtags for awareness under #JusticiaPatriarcal (Patriarchal Justice) and #NoEsAbusoEsViolacion (It’s not abuse, it’s rape).
- Lila Corominas, a spokeswoman for the Manresa Feminist Strike Committee told the Newspaper Nius Diario that this was “an obvious case of sexual assault and intimidation.”
- Leader of the Mas Pais political party, Inigo Errejon, exclaimed that the sentence was “shameful.”
Later in 2018
The unjust cases are, unfortunately, not so uncommon. In fact, later in 2018 another case was decided upon the offence of sexual assault. Two men went to a bar and then to a nightclub with the victim. They took her to an alley and forced her to have sex and carry out sexual acts without her consent. She pleaded with them to stop; and was vomiting and crying afterwards.
The judge, in fact, recognised that the “consumption of alcohol and antidepressants, may have weakened her ability to defend herself, thus making the use of violent or intimidatory acts unnecessary.” Yet even so, without the use of these acts, the offence cannot be classed as sexual assault.
Subsequent Law Change
Following the unjust decisions and the public outcry, Spain’s Government of March 2020 backed a proposed change to its law on sexual assault. Prime Minister Pedro Sanchez took power in a coalition in January 2020, granting him his first chance of pushing through a change in the law. (Back in June 2018 he ruled without a majority).
The proposal seeks to abolish the distinction between sexual abuse and sexual assault, as well as establish the determining question to be of consent. (Much like the UK, Sweden, and Germany). With this new proposal, any penetration without consent will be classed as rape, and punishable between 4 -10 years’ imprisonment. As well as extra considerations given for victims who are vulnerable; involuntarily intoxicated; and where a weapon is used against them.
This is a highly relevant topic, and requires real consideration following the UN’s International Day for the Elimination of Violence Against Women on 25th November 2020.