it All started in April of 2018, after the controversy first sentence of the case of The Herd in which the Navarra Provincial court convicted the five men for continuous sexual abuse, not rape. On the 27th of April, just a day after we knew the ruling, the then minister of Justice, Rafael Catalá (PP), announced that the Government would consider a reform on sexual offences in Spain and to meet with urgency to the general commission of codification. He promised a first proposal “in weeks”. A year and a half later, the review still has not materialized and the same controversy with the first sentence for the multiple rape of a young girl during the san fermin festival 2016 —consider a sexual abuse, the group attack a woman— is repeated with the multiple rape of Manresa, in this case with a child victim.

After the change of Government, the Executive of the PSOE —with Dolores Delgado at the forefront of Justice— took over for that review. By the end of 2018, the Government received a proposal from that committee, whose content has not yet been transferred to the Criminal Code. Sources of Justice point out that the text was quite advanced when it is dissolved the Cortes and called for elections last April. Can not approve, they add, with a functioning Government.

The work of the group of experts began to form rugged. The so-called section 4, of the Criminal, of the general commission of codification, was composed initially by 20 men. Over the protests of specialists, and jurists, they ended up modifying to bring together 15 women and 13 men. The main recommendations were sent to the Government were: the disappearance of the term sexual abuse the Criminal Code, a crime for which they were convicted initially the members of The Herd of Pamplona and Manresa; that all the crimes against sexual freedom are under the heading of sexual assault (with a distinction that separates between those “violent and intimidating”). They also noted that the joint action “of two or more persons” is equivalent to violence and intimidation. Held a dozen of meetings, according to sources from the commission. There were meetings of all the full, with the 28 members and, especially, meetings of a smaller group, formed by six people.

The Government has maintained its proposal, which must pass a parliamentary process to be an organic law, the suppression of sexual abuse by the Penal Code and the equating of violence or intimidation with the performance of two or more people. Among the main lines of the document that has worked for Justice with other departments (including Equality) includes eliminating the behaviors with the current regulation shall be punishable by a fine, according to explained sources of Justice. Retrieves the rape as a separate offence, which would become the most serious offence against sexual freedom, as also recommended by the commission of experts. It includes an aggravating factor of gender in the case of the rapist to be partner or former spouse of the victim, an aspect that responds to the mandate to include the gender perspective in the regulations and the dictates of the Istanbul Convention, according to sources in the commission consulted during the negotiation of the document.

The Executive he also studied a possible enhanced penalties. In the last meetings of the committee of experts, the jurists considered that the violation does not exceed the maximum penalty for the killings, which are 15 years of prison, unless they are crimes accumulated. In the document sent to Justice by the president of the commission, the attorney Esteban Mestre, set those 15 years, only in the most severe cases, with two or more aggravating.

How to pick up the ‘only yes is yes’ in the law

The Government in functions also explores a possible hardening of the conditions of enforcement of sentences of the perpetrators to make it difficult the access to prison benefits. These two aspects are not determined yet. Nor is it yet closed, according to Justice, how to formulate within the Criminal Code, the “only yes is yes” which defends the Government in order for the offense to revolve around the consent.

The proposal of the jurists, and also the text that handles the Government, keeps aggravating already imposed by the law: if the facts are “particularly degrading or insulting,” “when the victim is especially vulnerable, as the attacker has taken advantage of a “relationship of superiority or kinship with the victim”, when you have a “weapon or other means equally dangerous.”

The idea of the experts in Criminal Law to work the text was “clear” to the maximum the concepts to be easily understood by citizens without losing technical precision. The intention of the Ministry of Justice is also the Criminal Code easier to understand for citizens.


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