The sexual freedom law faces its first reform when it has been in force for just over six months. The changes in the so-called law of only yes is yes They will not serve to stop the trickle of reductions in sentences and releases agreed by the courts in application of the new norm, which by uniting in a single crime what were previously two —abuses and sexual assaults— lowered the minimum and maximum sentence provided for some assumptions. The reform, which essentially includes the proposal registered in February by the PSOE and which will be voted on this Thursday in Congress, will not apply to attacks already committed, but it will mean raising the penalties for those committed in the future when there is violence. , intimidation or the victim has their will annulled for any reason (which penalizes, for example, assaults under chemical submission), the three cases in which the text promoted by the Socialists aggravates the punishment and recovers the criminal framework prior to the law of only yes is yes.
The PSOE initiative has widened the gap with its Podemos partners, for whom distinguishing sexual assaults with violence or intimidation with a higher penalty implies establishing again different categories of assaults. One of the novelties of the law on sexual freedom is that it defines for the first time what is meant by consent in a sexual act: “It will only be understood that there is consent when it has been freely expressed through acts that, in view of the circumstances of the case, clearly express the will of the person. Before the entry into force of this norm, consent was also the element that determined whether or not there was a crime, but the crime in question depended on the means used to commit it: if violence or intimidation had not been used, it was considered abuse ( with a lighter penalty) and if there was violence or intimidation, aggression.
The socialist proposal does not touch the definition of consent, but it does introduce a new subtype for attacks with violence, intimidation or on a victim with annulled will in the criminal type that defines this crime. This, according to those responsible for the Ministry of Equality, “displaces” consent as the only defining element of sexual assault and will force the victim to face harsh interrogations to prove the seriousness of the attack. The Socialists reject this interpretation and assure that their proposal does not change anything in this sense, because to determine the sentence with the law of only yes is yes all the circumstances surrounding the assault must also be proven, including the existence of violence or intimidation.
The text registered by the Socialists leaves intact the penalty (between one and four years in prison) for the basic type of aggression, included in article 178 of the Penal Code, but incorporates an aggravated subtype (article 178.3) that reads as follows: “If If the aggression was committed using violence, intimidation or on a victim whose will has been annulled for any reason, the person responsible will be punished with one to five years in prison.” This same adjustment is applied to assaults with penetration, regulated in article 179. The law on sexual freedom reduced the minimum sentence for these cases by two years —which went from six to four— to accommodate past abuses. The PSOE reform maintains it, but creates an aggravated modality that raises the minimum punishment to six years when there is violence, intimidation or acting on a victim with the annulled will. The maximum penalty, 12 years, is not touched. The punishment for assaults on minors is also increased to return to the previous scenario, which means raising the minimum in some cases and the maximum in others.
The Socialists rejected the reform proposal presented in extremis by Unidad Podemos, which intended to consider violence and intimidation as aggravating circumstances of the aggression, but they have accepted some amendments, of an eminently technical nature, registered by the PP, whose vote was necessary to carry out the new text. The main one corrects the destipification that the law of only yes is yes erroneously introduced the “public distribution or dissemination through the Internet, telephone or any other information or communication technology of content specifically intended to promote, incite or encourage the commission of crimes of sexual assault when it comes to under 16 years of age”.
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Since the PSOE registered its proposal, the popular ones have insisted that the text copies the one presented by this party last December, to which the Socialists defend that the reform that is now going to be approved was sent to Podemos to try to negotiate an agreement days before the PP released his. The PSOE text coincides in part with the proposal presented by the Popular Party, which also advocated a return to the penalties prior to the law of only yes is yes for attacks with violence or intimidation. However, both texts present some differences, such as that the popular ones left out of this basic aggravated subtype the cases committed on victims who have their will annulled for any reason; or did not consider violence as an element that always implies that a sexual act is an assault (even if there is consent), an aspect that was introduced by the law of only yes is yes and that it maintains the text that is voted on this Thursday in Congress.
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