EXPLAINER: What is the ´Only yes is yes´ law and why was it needed?

The introduction of the “Only yes is yes” law in Spain has received significant negative publicity after it led to the reduction in the sentences of many of those convicted of sex crimes.

Although Spain signed up to the Istanbul Convention agreed in 2012 by the 34 member states of the European Union, significant opposition in the House of Deputies meant that concessions were made in trying to get an agreement on changes to existing laws.

But it also meant revising existing laws to meet the wording of the convention, which recognised the need to protect women from violence, to end discrimination and to ensure equal rights. In terms of Article 1 of the convention Spain is required to:

1. Protect women against all forms of violence
2. Contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men
3. Implement policies and measures for the protection of and assistance for all victims of women affected by violence
4. Promote international cooperation with a view to eliminating violence against women and domestic violence.
5. Support and assist organisations and law enforcement agencies to cooperate and adopt an integrated approach to eliminating violence against women and domestic violence.

But in making concessions and in adopting the wording from the final agreement, it opened the door to challenges by convicted sex offenders looking to have their sentences reduced.

The law came into force in August 2022 after narrowly making it through the House of Deputies with 205 votes in favour, 141 against and 3 abstentions.

Broadly speaking the law was intended to take away the assumption of consent, which could not be provided through silence or by default. Essentially the law was intended to make consent only it is explicitly given, hence the term “Only yes is yes.”

The problem with the change is that sexual abuse was removed from the penal code and is instead deemed to be assault.  Under the changed law, sexual violence will be considered assault, harassment, exhibitionism, street stalking or harassment, sexual provocation, prostitution of others, sexual exploitation, corruption of minors, female genius mutilation, forced marriage, sexual femicide and, in the digital sphere, sexual violence transmitted by technological means, sexual extortion and non-consensual pornography.

Some of these crimes come with shorter sentencing terms and it is this redefining of the law under which criminals may have been convicted that has led to a reduction in their sentence. It must be stressed, however, that only around half of those who applied to have their sentences reduced have been successful with their application.

Attempts are currently being made to fix the loopholes in the law but with elections coming up, opposition parties are unwilling to play along.

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