Spain: a victory in the struggle against sexual violence
Content warning: this article contains references to sexual abuse, assault and rape.
Spain’s new Law on the Guarantee of Sexual Freedom, structured around the principle of consent, reflects a determination to challenge widespread impunity for sexual and gender-based violence. It comes as a result of years of civil society advocacy, in the face of disinformation spread by anti-rights groups and Spain’s far-right Vox party, which mounted a fierce campaign against. Now civil society is calling on the government to implement the law fully – and preparing for further battles ahead, not least on protecting abortion rights and recognising transgender rights, an issue on which anti-rights groups are successfully sowing division.
‘Only yes is yes’: this seemingly obvious statement, long a motto of the Spanish women’s rights movement, has recently become law. Structured around the concept of consent, Spain’s Organic Law on the Guarantee of Sexual Freedom, passed on 25 August, eliminated from the Penal Code the distinction between non-consensual sex and rape and established a set of measures to prevent and respond to gender-based violence. It was the result of years and advocacy and campaigning.
The ‘wolf pack’ case
The law started taking shape six years ago, in response to a gang rape case that became a rallying point for Spain’s feminist movement. On 7 July 2016 a group of five men calling themselves ‘the wolf pack’ (la manada) gang-raped an 18-year-old woman during Pamplona’s annual bull-running festival. While committing their crime, they took photos and video footage that they shared on WhatsApp. They were quickly arrested, but thousands of people took a break from the festivities to protest.
The Pamplona festival has a long history of sexual attacks, which have been systematically downplayed. In 2008, 20-year-old Nagore Laffage was brutally raped and murdered, but the perpetrator was convicted of homicide, a crime with a less severe sentence than murder, even though criminal law says that a homicide preceded by a sexual attack is murder. Then, the crime was not even considered an act of gender-based violence.
Within days of the 2016 gang rape, four other cases were reported. In October, a prior crime committed by the ‘wolf pack’, in which the victim was unconscious, became public knowledge. These crimes were framed as sexual abuse, a less serious crime than a sexual attack.
When the trial for the 2016 gang rape began in a Navarra court in November 2017, feminist groups marched to demand fair proceedings. The prosecutor requested prison sentences of 22 years for the crime of sexual attack. But on the grounds that the victim had not resisted, in April 2018 the court sentenced the defendants to nine years in prison for the crime of ‘continued sexual abuse’. One of the judges even backed acquittal.
Activists awaiting the verdict outside the court protested under the motto ‘It is rape, not abuse’. Protests quickly spread to Barcelona, Bilbao, Madrid and Seville. Mobilisation again surged in December 2018, when the sentence was confirmed by the High Court of Navarra. The five men were only convicted of rape when the Spanish Supreme Court overruled the previous decisions. It also gave two of the men an extra penalty for filming the rape.
The road to change
In the aftermath of the ‘wolf pack’ case, civil society highlighted the key problem: far from being exceptional, the outrageous verdict was the result of the absence of a proper framework to deal with crimes of sexual violence.
In 2014 Spain ratified the Istanbul Convention, the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence. To align its domestic legislation with the Convention, it needed to reform its 2004 Comprehensive law against gender violence, which omitted several forms of violence such as trafficking, sexual exploitation and harassment.
Spain also lacked gender-sensitive training for the judiciary, a problem repeatedly noted by the United Nations (UN) Committee on the Elimination of Discrimination against Women, and collected poor-quality data on gender-based violence. Spain’s very low rates of rape allegations compared to other European countries also pointed to systemic problems faced by victims in trying to report crimes.
In November 2016, the Congress of Deputies unanimously approved a proposal urging the government to develop a ‘state pact’ to be agreed by Spain’s various layers of government – national, autonomous regions and provincial and municipal governments – to promote policies on violence against women. Passed in 2017, the State Pact on Gender Violence envisioned Penal Code reform to eliminate the distinction between sexual abuse and sexual aggression and introduce a key missing element: consent. But most of the pact, including this provision, remained unimplemented.
A window of opportunity opened when a left-of-centre government, formed by the Spanish Socialist Workers Party and Unidas Podemos (United We Can), came to power following Spain’s November 2019 election. The new government stated it would prioritise the implementation of the Istanbul Convention, and in December 2019 it announced a bill against sexual violence, centred around the concept of consent. An ambitious proposal for what would eventually become the law on sexual freedom, popularly known as the ‘Only Yes is Yes Law’, was prepared by the Ministry of Equality, headed by feminist activist Irene Montero.
The ‘Only Yes is Yes Law’ is a clear example of the joint work done by the women’s movement, and particularly the feminist movement, present in all spheres, including civil society and government.
The anti-rights reaction
For almost a decade, Spain has witnessed the rise of a far-right nationalist and populist political party. Founded in late 2013, Vox made its big leap into the national arena in 2019, a year of two elections. As support for the centre-right Popular Party plummeted due to a corruption scandal, Vox saw its vote jump from just 0.2 per cent of the total in 2016 to more than 10 per cent in the April 2019 election and 15 per cent in November 2019, when it became the third-largest parliamentary party.
Vox positions itself as the defender of traditional Catholic values. As well as being xenophobic and anti-Muslim, it openly declares itself to be anti-feminist and opposed to what it calls ‘gender ideology’ and the ‘LGBT lobby’. It campaigns against abortion and in defence of traditional family roles. It even called for the repeal of the 2004 Gender Violence Law, which it characterised as discriminating against men and children.
Its positions mean it consistently attacks civil society groups that mobilise to realise sexual and reproductive rights and recognise sexual and gender diversity, which Vox denounces as ‘communists’ and ‘feminazis’. One of its recent proposals was a so-called ‘parental pin’ to put parents in control of education: school heads would be required to seek parents’ authorisation to include children in activities that might be ‘ideologically or morally’ contrary to family convictions, including sex education.
Vox’s rise and its attention-grabbing campaigns have been consistently and generously funded by Hazte Oír (Make Yourself Heard), an ultra-Catholic Spanish anti-rights organisation founded in 2001, and the platform it established, CitizenGo, which since 2013 has worked to export Hazte Oír’s operations to around 50 countries around the world.
They are formidable opponents, and these anti-rights forces unleashed vehement opposition against the proposed law, with coordinated attacks both within and outside the political system. Identical narratives were promoted in parliamentary debates, on the streets and on traditional and social media. They portrayed policies against gender violence policies as anti-male discrimination and falsely claimed the new law wouldn’t protect male victims of sexual violence, would violate the right to the presumption of innocence of someone accused and would oblige people to sign a ‘contract of consent’ before having sex, among other intentionally misleading claims.
Throughout the debate, women’s rights organisations highlighted the importance of a proper diagnosis of the problem of gender-based violence and the need to implement comprehensive prevention measures.
But disagreements among women’s rights advocates also emerged, particularly around the status of sex work: some saw it as a form of violence and promoted its abolition, while others insisted that criminalisation would only worsen the vulnerable situation of sex workers. The division towards sex work and over a second bill promoting equality for transgender people, which started to take shape in mid-2021, was such that the feminist movement organised two separate demonstrations across Spain on 8 March 2022, International Women’s Day.
Disagreements around sex work also alienated some parties that might otherwise have backed the law but decided to abstain. Further concerns were expressed about the potential cost of implementing the law and its potential to encourage false allegations.
Voices from the frontline
Carmen Miquel Acosta is a gender lawyer at Amnesty International Spain.
The ‘Only Yes is Yes Law’ is a clear example of the joint work done by the women’s movement, and particularly the feminist movement, present in all spheres, including civil society and government, to respond to a situation. Participation in the legislative process was massive and civil society provided a great deal of input, as a result of which the draft was improved.
Feminist organisations were concerned on a number of issues during its development. With this law the government sought, among other things, to implement the Council of Europe Convention on preventing and combating violence against women and domestic violence, known as the Istanbul Convention, which requires Spain to adopt public policies of prevention. This requires a diagnosis and systematic data.
Another central discussion was how to deal with the use of stereotypes by the judiciary, what training should be given to judges and to what extent it should be compulsory, without being seen as interference in the independence of the judiciary.
Finally, there were some issues, such as sex work, that generated debates within feminist circles that remain unresolved. Amnesty’s position is that sex workers have human rights and the criminalisation of sex work not only does not help them, but exposes them to stigmatisation. Unfortunately, sex workers’ collectives were not consulted in the process.
The main challenge is to consolidate legally recognised rights and prevent backsliding. Rights gains that we had come to take for granted are not being consolidated or are experiencing setbacks. Hence, the importance of increasing human rights awareness and citizen participation.
This is an edited extract of our conversation with Carmen. Read the full interview here.
Vox never stopped denouncing the bill as ‘ideological and sectarian’ aimed at ‘destroying men’. Alongside the Popular Party, it repeatedly tried to block its discussion and approval. Having overcome several obstruction attempts, the Congress of Deputies, parliament’s lower house, first passed the law on 26 May 2022, with 201 votes for, 140 against and three abstentions. It then sent it to the Senate for its seal of approval, but what was expected to be a mere formality resulted in further delays when an inconsequential amendment forced the bill back to the Congress of Deputies. It was passed for good three months later, on 25 August, with 205 votes for, 141 against and three abstentions.
The new law places consent, rather than violence, at the centre of its understanding of sexual assault: it considers any sexual act done in the absence of freely expressed consent to be sexual aggression. It also introduces new aggravating circumstances, such as the aggressor being a relative, partner or former partner of the victim, the aggression being preceded by or causing ‘serious harm’, and the perpetrator overriding the victim’s ability to express consent by means of drugs or other substances.
The new law incorporates the concept of sexual femicide, defined as the homicide of women and girls linked to conduct defined as sexual violence, as well as formerly ignored forms of gender-based violence such as female genital mutilation, forced marriage, stalking, sexual harassment and psychological violence. It also codifies street harassment as a crime punishable with fines or community work.
Based on a comprehensive understanding of digital violence, the law criminalises online expressions, behaviours and propositions of a sexual nature used to humiliate or intimidate. In relation to revenge porn, when the victim is harassed, the perpetrator could face a jail sentence of up to two years.
The law mandates the creation of a network of comprehensive care centres to provide victim services in person and by phone, and places sexual crimes under the jurisdiction of courts specialised in gender-based violence.
It also seeks to tackle gender stereotypes and raise awareness by establishing gender-perspective training for judicial staff and other public officials and compulsory sex education in schools, as well as for university students in the areas of teaching, health and law.
Sex work however remains a controversial area. While articles on pimping included in early drafts were taken out of the final version of the law, those making the advertising of prostitution illegal were retained. These have already triggered protest marches by sex workers who claim the ban is affecting their livelihoods.
👉Su nombre completo es Ley Orgánica 10/2022 de Garantía Integral de la Libertad Sexual y pone el foco en la prevención, detección y sanción de la violencia sexual y en la reparación de las víctimas, tal y como estipula el Tratado de Estambul.✍ pic.twitter.com/JOydcE59fE— Mujeres Juezas (ᴀᴍᴊᴇ) (@mujeresjuezas) November 2, 2022
The battle lines are drawn and the same competing forces will continue to clash over the next two major initiatives awaiting legislative treatment: a bill to reform abortion law to eliminate barriers and guarantee access, and the even more controversial ‘Trans Law’, aimed at ensuring the right to gender self-identification by registration, without the need to fulfil any medical requirements.
Both initiatives have come in response to an anti-rights backlash, including harassment of patients in abortion clinics and the rise of discrimination against LGBTQI+ people. Vox has categorically opposed both and the People’s Party has submitted numerous amendments that will create delays.
Civil society groups are mobilising in support of these reforms, but the far right continues to try to exploit disagreements, including around sex work, and to make common cause with that part of the feminist movement that takes the position of virulent opposition to transgender rights, who define women as those ‘biologically female’ and therefore consider trans women as not ‘real’ women.
These polarising arguments – and strange resulting alliances between self-professed feminists and groups that explicitly attack women’s rights, including sexual and reproductive rights – are becoming increasingly common globally in reaction to the growing visibility of trans people.
In Spain and around the world, there’s still a long way to go to realise the aspirations expressed at the latest session of the UN Commission of the Status of Women, where women’s rights and LGBTQI+ rights groups urged the recognition and inclusion of women ‘in all their diversity’.
Only an intersectional and inclusive approach to women’s rights will achieve breakthroughs in the struggle against the multiple forms of discrimination and violence women continue to face. In the many polarised political contexts where rights are facing a backlash, the need for respectful dialogue around points of difference and the sustaining of common fronts of feminist resistance have never been more urgent.
OUR CALLS FOR ACTION
The Spanish government must provide the human, technical and financial resources to properly implement the new Organic Law on the Guarantee of Sexual Freedom.
Women’s rights groups should focus on finding common ground to work on a shared and inclusive agenda to resist anti-rights backlash.
Governments, civil society and the international community should keep raising awareness of the multiple expressions of violence against women and developing solutions to end gender-based violence.
Cover photo by Reuters/Sergio Perez via Gallo Images