ERC and EH Bildu propose a reform of the ‘only yes is yes’ that places violence as an aggravating circumstance and requires consent

The proposal that the Socialist Party registered in February maintains the current forks (lower than before the ‘only yes is yes’) in the general rate. And it adds in each article a higher gradation (similar to that of the previous legislation) for cases in which there is violence, intimidation or annulment of the will. This point is the one that caused the clash from the beginning with the Ministry of Equality, which understood that introducing violence or intimidation as a factor of differentiation implied de facto going back to the previous Penal Code and modifying the heart of the law to affect, in its opinion, based on consent.

To try to address this dilemma, unresolved during months of negotiations between the Ministry of Justice and the one led by Irene Montero, ERC and EH Bildu place violence as an aggravating circumstance. At the same time, they change the definition of consent to specify that “it will not be deduced that there is consent due to the absence of physical resistance or the silence of the victim, nor due to their previous sexual conduct”, an addition that was not even in the law in force nor in the proposal of modification of the Socialists.

Article 178, with the new wording and the precision on consent, would read as follows: “Whoever performs any act that violates the sexual freedom of another person without your consent. 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. It will not be deduced that there is consent due to the absence of physical resistance or the silence of the victim, nor due to his previous sexual conduct.

The groups set out in the text registered this Thursday a reasoned justification to reject that violence and intimidation form a criminal subtype. “The reincorporation of the commissive means ‘violence and intimidation’ as central in the criminal type of sexual assault, adding the element of annulment of the will of the victim, displaces consent as the defining element between a consensual sexual relationship and a sexual assault . This means denying that rape is already per se a form of violence, and affirming that there are non-violent rapes”, they maintain.

It is a reasoning similar to that carried out in recent months by the department of Montero, where they have insisted that this again generates two types and degrees of sexual assault, as was the case in the previous Penal Code. And they have reiterated, in addition, that this change distorts the spirit of a norm that sought to change the way in which sexual crimes are judged because it will pivot the procedures on the existence of these elements and not on consent.

In a similar line, Esquerra Republicana and EH Bildu understand, unlike the PSOE, that violence or intimidation (without the need for it to be extreme) is enough to aggravate the sentence to between seven and fifteen years. The proposal also introduces as an aggravating circumstance that the aggressor uses his status as a “person close to the victim” to carry out the crime, or that he does so using his status as a public official, public staff or agent of any body or institution. public.

The amendments of the two groups seek, on the one hand, to avoid lower sentences in the future than those that would have occurred with the old Penal Code (the current revisions cannot be stopped) and, on the other, to keep consent at the center of the text, which is the red line that Equality had supported from the beginning of the negotiation with Justice once it opened to modify the text.

The technical formula chosen by the PSOE to avoid lower sentences in the future showed the different interpretations that the partners of the Government make about consent in a debate that has been tensing the relationship between the two for months. This concept is the axis of the norm that was proposed jointly by both ministries, although it is an element that has been the backbone of crimes against sexual freedom since the nineties.

Without the support of United We Can

Esquerra and EH Bildu have registered these amendments on their own, without seeking the support of Unidas Podemos to change the law, despite the fact that since the parliamentary process of the reform began, both groups have defended that any modification should be made with the support of the Ministry of Equality. This was stated a month ago now, during the debate on the consideration of the socialist proposal, which went ahead thanks to the votes of PSOE, PP, PNV, Ciudadanos and PDeCAT and the abstention of Vox. The division in the Government led ERC and EH Bildu to vote against.

At the moment, Unidas Podemos has not presented any amendment to the socialist text, although in public it continues to reach out to its coalition partner to reach an agreement that “keeps consent at the center” and does not mean a return to the “Criminal Code de La Manada”, as they defend that the proposal of the socialists to modify the norm makes. Although Congress took the first step to reform the text on March 7 and it is being processed by urgent procedure, which cuts the amendment deadlines in half, Vox’s motion of censure this month led the groups to agree until two extensions of time to present modifications to the text. The last extension expires on April 10 and socialist sources assume that the final vote will take place ten days later, on the 20th of this month.