Spain’s congress has passed legislation referred to as the “only yes means yes law”, drawn up in the wake of the “wolf pack” gang rape in 2016.
The legislation passed with 205 votes in favour, 141 against and 3 abstentions. MPs from the conservative People’s party and the far-right Vox voted against it.
“It’s a victorious day after many years of struggle,” said Irene Montero, the equality minister. “From now on no woman will have to prove that violence or intimidation was used for it to be recognised for what it is.”
Under the new law consent must be affirmative and cannot be assumed to have been given by default or silence.
It was drawn up after five men raped an 18-year-old woman during the 2016 bull-running festival in Pamplona. In court it was argued that video footage from the men’s phones – showing the woman immobile and with her eyes shut during the attack – was proof of consent.
One judge claimed the men should only be charged with stealing the victim’s mobile phone.
They were sentenced to nine years in prison for the lesser charge of sexual abuse but after a public outcry the charge was changed to rape and the sentence increased to 15 years.
Shortly after that case, five men accused of raping a 14-year-old girl in the Catalan town of Manresa were convicted of the lesser charge of sexual abuse on the grounds that the victim was under the influence of drugs and alcohol.
In 2015 Spain raised the age of consent from 13 to 16. However, sexual activity with a minor could still be charged as sexual abuse rather than sexual aggression, unless there was “violence or intimidation”.
The new law removes the distinction between sexual abuse and sexual aggression (rape) by making explicit that consent is the deciding factor. Passivity and silence can no longer be interpreted as consent.
The law states: “Consent can only be considered consent when it has been freely manifested through actions that, in accordance with the circumstances, clearly express the person’s wishes.”
The law had already passed the senate earlier this year when it was delayed by an amendment to the wording of the act introduced by the conservative Catalan nationalist party Junts per Catalunya that was supported by the People’s party.
The mother of the 2016 victim said in a statement: “This law is the result of the bravery, perseverance and dignity of a girl who knew how she wanted to live without being judged by anyone, and who decided to go ahead so that we would all be aware of the miserable road that too many victims have had to, and continue to, go down. This is something we all have to change together.”
