“Although there is no going back, it is now crucial that the Spanish Government and its institutions monitor the real impact of the early release of perpetrators of violence on the lives of victims, try to minimize re-victimization and guarantee their protection. ”. This is how Reem Al Salem, the UN special rapporteur on violence against women and girls, pronounced on the so-called law of only yes is yes, one of the star standards of the Ministry of Equality. The statement from this independent expert comes the first of the two days in which the Criminal Chamber of the Supreme Court meets to set criteria for the reduction of sentences that the entry into force of the norm entailed. As of May 1, there have been 1,079 sentence reductions and 108 releases of sexual offenders, according to the latest balance of the General Council of the Judiciary (CGPJ).
These figures have led the special rapporteur Al Salem to express her concern on Tuesday about the fact that the adoption of the new norm, with sexual consent as the axis, has caused discounts for the aggressors. These figures, those of special rapporteurs, are independent specialists who analyze and deal with specific issues or countries for the organization, but this does not interfere in their work, which they do voluntarily and without salary. Why or when they issue their statements is something in which the UN does not intercede, and they explain that these rapporteurs usually do so when they have made their analysis, even if it is not immediately when specific events occur.
Thus, although the reductions in sentences and releases began last fall, Al Salem has spoken this Tuesday, in the pre-election period and when the Supreme Court debates to set criteria for sentence reductions. Among the issues that concern him about the norm, he has also made reference to the fact that the law “has not been accompanied by resources to guarantee its correct application”, since, according to what he has affirmed, it is estimated that one third of the victims of sexual violence in Spain they have not received any compensation for the violence suffered, and around half of the victims do not receive any compensation provided for in the sentences imposed by the courts on their aggressors.
Al Salem also believes that “for a country with a high rate of femicide, reducing the sentences of those guilty of perpetrating acts of sexual violence -against women and minors- sends the wrong message about the State’s priorities when it comes to ending against violence against women and children and fight against impunity for such crimes”, and that “the unfortunate consequence of the law could have been avoided if more attention had been paid to the voices of the different stakeholders who had warned against this consequence obstructive, such as those expressed by civil society organizations, politicians and the General Council of the Judiciary”.
And although he points out some positive issues —he mentions the request for an apology to the victims by the President of the Government and the modification of the law, approved last April with a proposal from the PSOE, by which the sentences are again aggravated when there is violence or intimidation or when the victim has their will annulled—, also regrets that “the negative consequences” have “overshadowed many positive aspects of the law”, such as “preventive measures to combat sexual violence, recognition of the rights of victims and facilitation of their access to resources, emphasis on the obligation of the State to provide legal and medical assistance, and guarantees of the right to reparation”.
In one of the studies of the Antígona Research Group of the Autonomous University of Barcelona —Sexual violence in the Spanish State: Legal framework and jurisprudential analysis—, an analysis of 167 judgments was made between 2016 and 2017 in Madrid, Catalonia and Andalusia. That report reflected that in the rulings they studied, 6% had a waiver of compensation. And in those that do not, the compensation for sexual assault and abuse “is miserable,” the researchers wrote.
Between 58% and 60% have compensation for moral damages “less than 6,000 euros, practically 42% of them less than 3,000”. And they affirmed that “with these very small amounts, the damage suffered is being minimized, it is relativized until it is taken to the background, sometimes giving the impression that the years in prison that the aggressor is sentenced to compensate for the moral damage suffered by the victim ” and “it is thus obvious that the moral damage of the victim can last a lifetime, that the aggression can condition their sexual, sentimental, work, family life”.
Since its entry into force, in October 2022, the new regulation establishes that compensation “for material and moral damages”, in accordance with the criminal laws on civil liability derived from crime, “must guarantee the economically evaluable satisfaction of , at least, physical and psychological damage, including moral damage and damage to dignity; loss of opportunities, including opportunities for education, employment and social benefits; property damage and loss of income, including loss of earnings; social damage, understood as damage to the life project; therapeutic, social and sexual and reproductive health treatment”.
Beyond what is established for judicial rulings, the articles of the norm include economic aid for two of the central issues of the law itself, and to which the UN rapporteur refers, the recovery and reparation of victims. However, the Royal Decree that was to regulate them has been left in limbo after the dissolution of the Cortes and the accelerated call for general elections.
The consent
Regarding the substance of the norm, Al Salem believes that “using the threshold of whether there was consent or not as the burden of proof loses meaning in many situations and can lead to the burden of proof falling on the victims and not on the aggressors ”, citing cases of trafficking in women for the purpose of sexual exploitation and abuse, and exploitation of prostitution and pornography, in which consent is flawed, not free.
On the one hand, the norm establishes in any case as violence all “acts of a sexual nature that are not consented to or that condition the free development of sexual life in any public or private sphere, which includes sexual assault, sexual harassment and exploitation of the prostitution of others”, in addition to “non-consensual pornography and sexual extortion”.
On the other hand, in a judicial process for sexual violence, as in any other, the facts of which the alleged aggressor is accused must always be proven. Although historically, due to the very functioning of sexual violence and due to the stereotypes that surround it, on many occasions the lack of physical evidence, or the habitual paralysis faced with a threat suffered by the victims, has led to reduced sentences or even acquittals of the perpetrators. aggressors.
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