[Content note: Sexual violence]
On 25 August 2022, Spain’s Congress passed into law the Draft Organic Law for the Comprehensive Guarantee of Sexual Freedom, known colloquially as the Consent Act. The law requires explicit consent when consenting to sexual relations. The new law, also referred to as the “only yes means yes” Bill, passed with 205 votes in favour and 141 against.
The amendment comes after a notorious gang rape case in Spain, concerning the rape of an 18-year-old girl by five men in 2016. During the sentencing proceedings, the men avoided conviction on charges of rape on the grounds that the survivor was drunk or unconscious and did not fight back. Under the law in force at the time, victims were required to adduce evidence of violence, resistance, and intimidation to prove rape. Instead, the perpetrators were found guilty of sexual abuse, which came with a lesser sentence. The Supreme Court later overturned this decision, and subsequently sentenced the men to 15 years in prison for rape.
The new Act clearly defines consent and requires that it be explicit and to the exclusion of silence and passivity. Consent must be freely expressed through acts that, in view of the circumstances, clearly express the will of the person. In terms of the new Act, where there is lack of consent, a victim or survivor can lay a charge of rape. A person who is unable to understand the situation, as a result, for example, of being under the influence of drugs or alcohol, is deemed incapable of consenting.
In addition to defining consent, the Act places an obligation on minors who commit sexual offences to undergo compulsory sex education and gender equality training. The Act also establishes a 24-hour crisis centre for sexual assault and rape victims and survivors.
- The Congress’s press release can be accessed here.
- The Bill, now passed into law, can be accessed here.
Please note: The information contained in this note is for general guidance on matters of interest and does not constitute legal advice. For any enquiries, please contact us at [email protected].