Is “only if” new? Analysis of consent in crimes against sexual freedom.

For some time now, consent has become fashionable and is talked about practically every day, since Law 10/22 on Guarantees of Sexual Freedom (the well-known "yes is yes" law) has placed great emphasis on the fact that the refusal of one of the parties to have sexual relations means that any attempt to circumvent that refusal is considered a sexual assault, but is this a novelty in the field of criminal law?

In this office we consider that no, and that it was not necessary to modify the articles of the penal code to understand that "yes is yes" or, better said, "no is no", that is to say, that the refusal of the party obliges the other party to respect such decision and not to execute the act.

The current wording of the article regarding consent is as follows: "...whoever performs any act that infringes on the sexual freedom of another person without his consent. Consent shall only be understood to exist when it has been freely manifested through acts that, in view of the circumstances of the case, clearly express the will of the person".

As can be seen, the definition provided by this regulation focuses on consent and its manifestation.

In the previous wording, two distinct offenses coexisted:

sexual assault, defined as follows: "Whoever attempts against the sexual freedom of another person using violence or intimidation..."
and sexual abuse, defined as follows: "Whoever, without violence or intimidation, and without consent, performs acts that violate the sexual freedom or indemnity of another person...".

We understand that these definitions already included, implicitly, consent and therefore it was not necessary to modify the types, since both use the word "attempt", which according to the dictionary of the RAE means "to commit an aggression against the life or physical or moral integrity of someone", and obviously an aggression is an act contrary to the will of the person who suffers it and, therefore, not consented.

Despite the above, sexual aggression required the use of violence or intimidation, and therefore it was assumed that these acts were contrary to the consent of the person who suffered them.

To reinforce the need for consent and since violence or intimidation is not required, the article on sexual abuse expressly referred to the fact that in order for this crime to be committed, the victim must not allow such acts.

It is evident, then, that crimes against sexual freedom and indemnity, since the entry into force of the so-called Penal Code of democracy, have been governed by the need for consent prior to sexual intercourse in order for the crime not to be committed.

In fact, the judgments of our courts understood that consent was implicit in the legal types in force, such as the judgment of the Juvenile Court 3 of Alicante in 2007 (Judgment 6/2007) which we transcribe below in which the minor Omar stated that Julia had previously insinuated herself to him and for that reason he forced her to have sexual relations with him:

"...acting with a macho behavior he interpreted that Ms. Julia's approach gave him the right to have a sexual relationship with her, which is absolutely reprehensible, since if a woman says that she does not want to have sexual relations it is a "no", and cannot be interpreted in any other sense. At all times Ms. Julia told her aggressor, Mr. Omar that "please no, please no". We must share the opinion of the Public Prosecutor's Office when it stated in its report that, if a woman says no to a sexual relationship, this means, without a doubt, that she does not want to have that sexual relationship (...) It should be added that caresses or affectivities do not simply generate tacit consent to have sexual relations..."

José Soler Martín - Lawyer