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Is Spain's new rape law reducing jail sentences of sex offenders?

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By Laura Llach
A protest against sexist sexual violence, in Pamplona, northern Spain.
A protest against sexist sexual violence, in Pamplona, northern Spain.   -   Copyright  Alvaro Barrientos/AP Photo, FILE   -  

Antonio S., an English teacher in Madrid who was jailed for three crimes of sexual abuse, was released from prison last month after a new Spanish rape law came into effect.

The law was meant to be stricter than the previous code in place, but instead resulted in the teacher serving only half of his jail sentence since the crime he was convicted of was not included in the new law.

He had paid students to perform sexual acts, offering to pay €1,200 to one of them for fellatio who rejected it.

Antonio S. is now one of many sex offenders who are benefiting from what experts have said is a loophole in the new law that was meant to be a win for victims of sexual abuse.

'He has been acquitted by the equality minister'

All of the minors targeted by Antonio S. were between 16 and 17 years old and were his students, former students or their friends.

Following a complaint in 2019, the teacher was arrested when eight of the boys accused him in a trial that took place in December 2021.

"He was accused of a dozen offences of a sexual nature, corruption of minors, prostitution of minors etc.
The prosecution was asking for 40 years in prison and €40,000 for the victims," Alvaro García-Olay Samaniego, the teacher's lawyer, told Euronews.

On 28 September this year, eight days after the new Spanish rape legislation known as the "only yes is yes" law came into force, the Madrid Provincial Court contacted García-Olay in writing.

"It was ex officio, without us asking for it. The court warned us that this new law was going to come into force and that we could present (a request) to release my client immediately," said the lawyer, who added that this procedure is not usual in other cases.

While the teacher had already been tried, Spain's Criminal Code establishes a principle that allows new criminal laws to be retroactively applied -- only if doing so benefits the defendant.

In the new law, "as abuse and sexual assault have been merged (into one single crime), now everything is considered assault," the lawyer explained.

"In my client's case there was no violence, so it has been decriminalised. That's why he was immediately released from prison", the lawyer said.

Before this year's reform, article 182 of Spain's Criminal Code condemned a person who exploited a position of power to abuse a victim between 16 and 18 years of age.

"Exerting influence to commit sexual abuse or allowing oneself to be abused, which used to be considered a minor misconduct, is no longer a crime. And, since it is no longer a crime, he has to be released," said Concepción Roig, spokesperson for Judges for Democracy.

All eyes turn to Irene Montero, the equality minister who was the leading promoter behind the legal reform and now faces intense criticism from other opposition parties, civil society, judicial organisations and even some of her political allies.

"Thanks to Irene Montero, (under the new law) my client would have only spent a year in jail. We were not able to get him acquitted, it was the Ministry of Equality," said García-Olay Samaniego.

The lawyer explained his request to release the convicted teacher was written on half a sheet of paper. The Public Prosecutor's Office opposed it but had no legal standing to stop the request.

In total, Antonio has effectively served three years in prison, even though under the new law, he only needed to serve 15 months.

His lawyer now plans to request compensation from the Spanish state for the extra time served.

Alvaro Barrientos/AP Photo, FILE
Women during a protest in Pamplona, Spain after the gang rape of a minor.Alvaro Barrientos/AP Photo, FILE

So what happened with this new 'only yes is yes' law?

The Madrid teacher's case is not the only one to cause a stir in recent days.

After this new rape law entered into force on 7 October, there have been a growing number of court rulings to reduce the sentences of sex offenders who were convicted under the previous legislation.

At the moment, there are 14 reduced sentences for sexual abuse in Spain, with most of the cases in Madrid.

The controversy arises from the fact that the new law removes the distinction between sexual abuse and sexual aggression, experts say.

Sexual aggression involved the use of violence or intimidation while sexual abuse implied other types of means, explains José Luis Díez Ripollés, professor of Criminal Law at the University of Málaga.

"This new law was made to give more importance to the role of consent. So, regardless of whether violence or intimidation is used or not, all behaviour that is not consensual must be condemned in the same way," Díez told Euronews.

"By putting assault and abuse together in the same offence, they have tried to find a middle ground for the penalties," he added.

"As they could not use the penal framework for assaults because it was too harsh for sexual abuse and they could not use the one for sexual abuse because it was too light for assaults, they decided to put the maximum limit for assaults with the minimum for abuse," he said.

The result has been a wide range of sentences from just a fine in the lightest cases to 15 years in prison for the most serious ones, by lowering the minimum sentences and increasing the maximum ones.

Sexual assault with penetration, which was punished with a minimum of six years in prison, is now punishable by four years.

"The decision to combine assault and abuse together was technically defective. We warned about this before the law was passed," said Díez.

"It was a mistake. The old law was very well drafted. But this has been an ideological reform in which they did not take into account how the Criminal Code works," he added.

Can the courts stop this?

According to Manuel Cancio Meliá, Professor of Criminal Law at the Autonomous University of Madrid, a person who has already been convicted, even if they were sentenced, should not have past laws applied to them unless it benefits their case.

"This is why cases in which the sentence has been reduced must now be reviewed. Spanish courts must do this ex officio or at the request of the convicted person, even if he or she is already serving the sentence," he told Euronews.

Cancio Meliá argues that the courts are doing this in a very mechanical way.

"They have to look at the case properly. This law is a mixture of offences that were previously separate, so they should look carefully at what happened in each case," he added.

"It shouldn't be argued that, because the article is the same but the sentencing is more lenient, courts should review all cases."

Yet courts face a difficult task because while they can interpret laws, they cannot reinterpret the facts by adding aggravating circumstances or maintaining a sentence that exceeds the limit imposed by the new law.

"Criminal law works according to certain rules, and we judges have to comply with those rules because we understand that if laws evolve, it is because society has evolved," said Roig, spokesperson at Judges for Democracy.

Spain's equality ministry however has blamed the actions of judges.

Minister Irene Montero said the reduction of sentences is due to judges "breaking the law" as a result of "machismo" and defended the effectiveness of the original text. 

"This is not because we judges are sexist, nor because the law has a crack in it," counters Roig.

"If the image of those who have to protect the victims, who are the judges, is tarnished in this way, the only thing they will achieve is that the victims will not come forward to denounce (sexual violence)," argued the spokesperson in reference to the minister's statements, which were widely criticised.

"The law has gone through the entire parliamentary process and no amendments were made. The legislator has decided and we have to apply it," she added.

The decision is now in the hands of the Supreme Court, where several appeals of sexual offence sentences requesting that Spain's new law be taken into account have been tabled.

The tribunal is expected to rule in the coming weeks on how the new law affects cases tried under the previous legislation and its decision will set the path for the High Courts and Provincial Courts.

The aim is to unify the criteria for some cases and avoid disparate rulings.