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What is happening with the reform of sexual offenses?

December 13, 2022

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The Conversation

Elena Iñigo Corroza

Professor of Criminal Law of the University of Navarra

The application of Organic Law 10/2022, of September 6, the famous "yes is yes law" is giving rise to problems in the day-to-day operations of the Courts that are facing cascading requests for review of previous convictions, an issue that, by the way, had been warned by the committee General of the Judiciary.  

As the most relevant measure, this Law eliminates the distinction between sexual aggression and sexual abuse, being considered sexual aggression all those conducts that attempt against sexual freedom without the consent of the other person, thus complying Spain with the obligations assumed since it ratified in 2014 the agreement of Istanbul. It is also expressly introduced as a form of commission of sexual aggression the so-called "submission Chemistry" or through the use of substances and psychotropic drugs that override the will of the victim. 

At the same time, it gives a definition of what is understood by consent and perhaps this is one of the most controversial issues of the reform. There has been much discussion on the need to provide guidelines on what should be understood as consent; whether it must be express or whether tacit consent is sufficient. This idea is what has led to the understanding that the lack of consent is the core topic of these crimes and that, therefore, as long as there is no consent, the conduct is sexual aggression, regardless of the means used to bend consent.

This part of the reform does not simply imply a change in terminology, but a fundamental change in the configuration of the sexual crime. It also entails the disappearance of the crime of sexual abuse and therefore, all conducts affecting sexual freedom without consent (obviously, it cannot be otherwise) will be sexual aggressions. 

The new offenses of sexual aggression include behaviors of very different entity and value because they must accommodate those that involved an affectation of the legal right without violence and intimidation and those that are understood to be more serious because they involve violence or intimidation in addition to this affectation. Therefore, currently the minimum limit of the punitive framework of the current crime of sexual assault is lower than the previous one, because it includes and values those conducts (formerly sexual abuse) that have less legal value than those that were previously considered sexual assault. And this is where the problem lies in the application of the criminal reform at internship . 

Article 2.2 of the Criminal Code in force states: "... those criminal laws that favor the offender will have retroactive effect, even if at the time they enter into force a final sentence has been passed and the subject is serving a sentence (...)". 

The new organic law 10/2022 has, for some sexual assault crimes, a lower minimum limit than the previous one, therefore, it is more beneficial. This is the argument put forward by lawyers who are asking for review of the sentences of some convicted of sexual offenses under the previous law. The question is: does this apply to all cases, and will all those previously convicted of sex crimes benefit from a reduced sentence? The answer is no, only for those cases where the minimum sentence of the previous crime was applied to the convicted subjects and whose minimum sentence would now be lower. Or to those convicted of attempt, because the penalty for the attempt (one or two Degrees less than the penalty subject) is now lower than the previous one. 

And can not be applied to the already convicted a higher penalty of agreement to the new law taking into account, for example, the concurrence of an aggravating circumstance? Well, neither, because the aggravated types were also contemplated in the previous legislation and if it was not applied at the time, because the court understood that it was not appropriate, it cannot be applied now. It is not the same thing to review the facts of the case as to review the sentence imposed. 

The status described above has led the State Attorney General's Office to publish a decree (dated November 21, 2022) to establish criteria for the possibility of reviewing sentences. This decree establishes that final sentences will not be reviewed when the penalty imposed in the sentence is susceptible to be imposed according to the new legal framework resulting from the reform. 

It is also pointed out that each procedure should be analyzed individually, avoiding automatisms that prevent an assessment of the specific circumstances of each case. This matter, once again, is controversial. It is not at all clear that this way of proceeding does not affect the aforementioned principle of "retroactivity of favorable provisions". 

Once again, confusion is served. I believe that the famous phrase attributed to Julius Hermann von Kirchmann "Three rectifying words from the legislator, and whole libraries of law turn to garbage" becomes valid. In this case a change, not particularly complex by the legislator, has revolutionized the daily judicial internship .