After a court’s decision last month to release five men on bail who were convicted of sexually abusing an 18-year-old woman (and the public outcry that followed their release), Spain is reevaluating its legal definition of sexual consent.
A law proposed by Spain’s new socialist government (in which women outnumber men, if you’ll remember) states that consent must be given explicitly, according to a report from the Guardian. The law would mean that the Spanish government would no longer rely on the presence or absence of “no” in determining whether a sexual encounter counts as rape. In short: Spain seems to be coming around to the idea that “yes means yes” and that sex with a person who stays silent or who does not resist is therefore considered rape.
The law would significantly alter Spain’s current understanding of rape—which, as it stands now, states that rape always involves violence and intimidation.
The proposed change comes after protests took place across Spain in response the latest development in a case referred to as the “wolf pack” case (in Spanish, “la manada”), based on the defendants’ WhatsApp group chat name.
Two years ago, five men were accused of gang raping an 18-year-old woman at a bull-running festival in Pamplona. The men were acquitted of rape, but convicted of the lesser crime of sexual abuse. The five men were sentenced to jail in 2016, but released on bail last month.
The lesser charge hinged from the judges’ interpretation of the victim’s consent. According to a report from the Guardian at the time of the trial, video footage of the incident—which two of the five men shot on their phones—showed the woman “immobile and with her eyes shut during the attack.” To the judge, his was proof of consent.
For anyone wondering, a law professor who consulted on the draft of the new legislation clarified the rather obvious: Yes, explicit sexual consent can be given non-verbally:
“It can still be rape even if the victim doesn’t resist,” she said. “If she is naked, actively taking part and enjoying herself, there is obviously consent. If she’s crying, inert like an inflatable doll and clearly not enjoying herself, then there isn’t.”
So, that clears things up.