Legitimate Defense in Spain: Analysis and STS 1565/23
May 30, 2024
Is “only if” new? Analysis of consent in crimes against sexual freedom.
May 30, 2024
For some time now we have been hearing in the news that more and more sex offenders and rapists are benefiting from reductions in the sentences imposed since the entry into force of Law 10/22 on Guarantees of Sexual Freedom, which is none other than what is known as the "Law of Only if it is if". Why is this happening if this law is supposed to serve to increase the sentences of rapists?
It is simple: it is the application of the general principle of law of the application of the most favorable criminal rule, which states that, when there is a collision of two criminal rules whose validity in time is different, and any of them can be applied to the defendant, the most favorable one must be applied. This is provided for in Article 2.2 of the Criminal Code, which states that "those criminal laws that favor the defendant will have retroactive effect, even if at the time they enter into force a final sentence has been handed down and the subject is serving a sentence. In case of doubt about the determination of the most favorable law, the defendant will be heard. Acts committed while a temporary law was in force shall, however, be judged in accordance with it, unless expressly provided otherwise."
Until the current reform, there were two types of acts against sexual freedom:
sexual abuse, which consisted in the performance of acts against the sexual freedom of a person, but without violence or intimidation (when a person was abused when intoxicated or drugged, for example) - arts 181.1 and 181.4 of the Penal Code respectively, depending on whether it was without penetration or with penetration.
and sexual aggression, in which the sexual act was committed by means of violence or intimidation - collected in articles 178 and 179 of the Penal Code, depending on whether it was without penetration or with penetration.
It turns out that the legislator of the year 2022, in its efforts to punish acts against sexual freedom, brought together in a single type of crime what were previously two different ones, and thus, while before there was a difference between sexual abuse without penetration contained in art. 181.1 (such as touching the breast or genitals of a sleeping or intoxicated person), which was punishable with imprisonment from 1 to 3 years, and sexual assault without penetration (touching the genitals of a person, under intimidation or violence) punishable in article 178 with imprisonment from 1 to 5 years, currently these acts are encompassed in a single article: 178, which punishes as sexual assault any act that infringes on the sexual freedom of a person (provided that there is no penetration) and imposes a penalty of 1 to 4 years.
The same happens with sexual aggression with penetration, since while in the previous regulation article 181.4 punished sexual abuse with penetration with a penalty of 4 to 10 years (when sexual relations were maintained with a person taking advantage of being drugged or intoxicated), and article 179 punished sexual aggression with penetration using violence or intimidation (what is purely known as rape) with a penalty of 6 to 12 years, the current regulation of article 179 punishes any act against sexual freedom with penetration with a penalty of 4 to 12 years.
We have to start from another principle of criminal law, which is that criminal decisions must necessarily be motivated, and this so that, if they are not considered fair, they can be properly appealed knowing the reasons why the court has taken one or the other decision. This means that, if the law foresees for a crime the penalty of 6 to 12 years and a Court decides to impose the penalty in its minimum degree (6 years) or in its lower half (any amount between 6 and 9 years), it must explain why in the sentence, it must motivate it.
Examples:
A rapist sentenced to the minimum penalty for the concurrence of any mitigating circumstance (which was 6 years according to art. 179 above) is now entitled to keep the minimum penalty (which is currently, as we have said, 4 years), and therefore, the penalty should be reduced from 6 years to those 4 years.
The same would occur if the sentence justifies that, as there are no aggravating circumstances, the sentence to be imposed is in the lower half (i.e., from 6 to 9 years) and a sentence of 8 and a half years has been imposed, it turns out that the lower half at this time goes from 4 to 7 and a half years, so that the 8 and a half years that were imposed exceed the 7 years that would correspond at present and therefore have to be lowered, at least up to that amount.
For that reason many sex offenders are benefiting from the law reform and their sentences are being reduced.
