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Spain might be next to criminalize sex without affirmative consent

Protesters in Madrid carry a sign reading ‘We are the wolf pack. It not abuse, it is rape” during a demonstration against the verdict in April.
Full Credit: Pablo Blazquez Dominguez/Getty Images

Spain may soon join a list of countries to make “yes means yes” the legal standard in sexual encounters.

Spanish Deputy Prime Minister Carmen Calvo signaled her intent to introduce legislation that would require clearly expressed consent in sexual contact. The concept is often referred to as affirmative consent, in which both parties agree to sexual conduct, either through clear, verbal communication or nonverbal cues or gestures.

Calvo’s announcement follows outrage over the release of five men who were convicted of lesser charges in an attack on a female teen during the 2016 running of the bulls in Pamplona.

“It’s something as resounding and perfect as if a woman does not expressly say ‘yes,’ everything else is ‘no.’ That’s how her autonomy is preserved, [along with] her freedom [and] respect for her person and her sexuality,” Calvo said, according to a July 10 statement that laid out the government’s plans to introduce more “feminist” policies.

The proposal would be modeled after similar laws in Sweden and Germany that criminalize sex without clearly expressed consent as rape, Calvo said. Prevention specialists say affirmative consent is more effective public policy than “no means no,” which often places the burden on victims and prosecutors to prove unwanted contact. Critics call it overreach that would be hard to enforce. A few American states, including New York and California, have enacted legislation requiring public colleges and universities to include affirmative consent in conduct policies.

The Swedish government updated its definition of rape to include sex without clearly expressed consent. Before the new law took effect July 1, prosecutors were required to prove a victim was subjected to violence or threats.

Germany added consent to its sex offense statute and outlawed groping two years ago in response to a campaign called, “Nein Heisst Nein,” or “No Means No.” The campaign was launched after hundreds of women were assaulted during New Year’s Eve celebrations in German cities. Before the new measures took effect, groping was not a crime and rape prosecutions required proof the victim had physically resisted the attacker.

In Spain, the government pledged to review its sex crimes law amid public outrage over the verdict in “la manada” (the wolf pack) case. Protesters took to the streets across the country in April after five men were cleared of gang rape and convicted of the lesser crime of sexual abuse for the July 2016 Pamplona attack. Under Spanish law, sexual abuse differs from rape in that it does not involve violence or intimidation.

The case is known by the name of the WhatsApp group the defendants used to share messages about the attack on the 18-year-old victim. The men — José Ángel Prenda, Antonio Manuel Guerrero, Ángel Boza, Alfonso Jesús Cabezuelo and Jesús Escudero — recorded cellphone video of the encounter.

The three-judge panel heard testimony that the men pushed the woman into a deserted hallway and told her to “shut up” before engaging in sexual activity with her.

She “adopted a passive, submissive stance” because she felt trapped and afraid, according to the sentencing document. One of the men took her phone from her bag before they left her there.

The men, who denied wrongdoing, were sentenced to nine years in prison. They appealed their sentences and were released on bail in June. The decision sparked more protests in Pamplona, Madrid, Barcelona, Valencia and Alicante.