The PSOE proposal to reform the law on sexual freedom raises doubts among jurists

Protesters in front of the headquarters of the Supreme Court in June 2019, when it reviewed the sentence of La Manada and increased the sentences for the five aggressors.Andrea Comas

The perception that most criminal law experts have regarding how sexual assaults are punished in Spain is far from that prevailing in public opinion and among political parties.

Jurists have warned for decades that the Spanish penal framework is one of the most severe in Europe and they ensure that these high penalties do not increase the protection for women, which is why they tend to be reluctant to legal reforms that involve increasing penalties, a reaction that has been repeated this Monday after learning about the PSOE proposal to modify the law on sexual freedom.

But the positions among the experts are not univocal either and while some flatly reject the change, others consider it "unnecessary".

Only one of the half dozen criminal lawyers consulted believes it is appropriate to reform the rule to clearly distinguish between cases in which the aggression is committed using violence or intimidation, and other less serious ones, in line with what the PSOE proposes.

But this expert asks to work on the reform calmly and warns that it should also include a reduction in behaviors that were previously considered sexual abuse and are now included in the crime of assault.

"Otherwise, these not so serious behaviors will continue to have, unjustifiably, a higher penalty than before," he warns.

But this expert asks to work on the reform calmly and warns that it should also include a reduction in behaviors that were previously considered sexual abuse and are now included in the crime of assault.

"Otherwise, these not so serious behaviors will continue to have, unjustifiably, a higher penalty than before," he warns.

But this expert asks to work on the reform calmly and warns that it should also include a reduction in behaviors that were previously considered sexual abuse and are now included in the crime of assault.

"Otherwise, these not so serious behaviors will continue to have, unjustifiably, a higher penalty than before," he warns.

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All criminal lawyers start from a premise: reductions and releases as a result of sentence reviews or appeals on recent convictions can no longer be stopped, because no legal reform can harm the prisoner retroactively.

Based on this premise, the increase in penalties for the most serious attacks that the Socialists are now proposing will only apply to crimes committed after this future reform enters into force.

And, at this point, regardless of the opinion one had about the sexual freedom law, the majority considers that the current law should be allowed to consolidate and jurisprudence settle and, only then, modify what is considered it is not giving the desired effects.

“When the courts begin to apply a law, it takes a while for them to perceive the real differences between laws and change the chip.

Until after months or years they begin to develop different jurisprudence.

You have to go through this process before proposing a possible reform”, says Patricia Faraldo, professor of Criminal Law at the University of A Coruña and member of the expert commission that participated in the drafting of the law that is now going to be reformed.

In the same line, María Acale, professor of Criminal Law at the University of Cádiz, expresses herself in favor of waiting for the revisions of sentences to finish.

"You have to look ahead," says Acale, who regrets that a feeling of "alarm" is spreading among public opinion.

"The victims are safe, this fear cannot be transmitted to them," she emphasizes.

For this expert, most of the reductions in sentences could be avoided by applying an "antidote" included in the regulation itself: article 194 bis, which establishes: "The penalties provided for in the crimes of this title will be imposed without prejudice to the one that could correspond for the acts of physical or mental violence that were carried out”.

“The law obliges judges to apply crimes between acts of sexual assault and the violence or intimidation that has been used.

Professor Faraldo also refers to this article and to others that are not being “squeezed out” either: “Some courts are simply making an arithmetic reduction.

Where it put six years now it puts four.

But it is that if you take the new law, you have to apply the security measure of probation;

the penalty of deprivation of parental authority and disqualification for the exercise of other rights;

prevent third-grade outings if the training courses on the subject have not been taken advantage of”, says Faraldo, who believes that increasing the penalties in cases of violence or intimidation will mean “returning the focus of consent”.

Along these lines, the expert agrees with the main reason that Podemos puts forward to oppose the socialist proposal.

“What defines the crime is that the sexual conduct occurs without the consent of the victim.

And there is already an adequate penal framework that punishes cases with violence or aggression ”, he affirms.

"Sorrows are fine as they are"

Not all experts share this fear, however.

For Professor Manuel Cancio, a reform such as the one being considered "does not affect the heart of the norm".

"As long as the definition of consent is maintained, the essence will be that," says Cancio, who is critical of the announced reform, which he describes as "unnecessary."

“The penalties are fine as they are, they are even high.

Homicide is punishable by 10 to 15 years.

There are very serious violations that come out for the same thing and that grates ”, he assures.

“If you expressly distinguish between behaviors with violence and intimidation and those that do not, I don't think you are making any mistakes, what happens is that it has more political than real impact.

Nothing is going to change because the law already makes that distinction, ”he points out.

Professor José Luis Díez Ripollés is in favor of distinguishing between some assumptions and others because he considers that the current wording "blurs" the differences between very different behaviors.

“We have to go back to the previous situation in which there was a clear difference between aggressions and abuses.

Whether you want to use the same term for both behaviors is a matter of semantics, it doesn't matter.

As long as the cases are distinguished according to the means of commission, depending on whether violence or intimidation has been used, or other less serious means of commission, as is also done in other places of the Penal Code”.

However, if the reform is carried out, warns the professor, other aspects not alluded to in the socialist proposal would also have to be modified, such as reducing the excessive number of aggravating factors that were incorporated into the

and lower the penalties for not so serious cases, which were previously considered abuses, and for which the new law increases the punishment by including them under the crime of aggression.

02:23

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The Minister of the Presidency, Félix Bolaños, spoke after meeting with the President of Cantabria, this Monday in Santander. Photo: Juan Manuel Serrano Arce / Europa Press |

Video: Europa Press

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