Irene Montero: Four years of legal reform with a dangerous loophole in the ‘only yes is yes’ law that no one has closed | Spain

unmerciful Five men attacking a young woman at festivals sanfermins of 2016 He was tried in the Navarra County Court two years later. The court then, realizing that there was no violence or intimidation, classified the facts as sexual abuse and sentenced each of the defendants to nine years in prison. This court decision triggered a great public debate and sparked strong protest from the feminist movement demanding that the Penal Code be amended so that this would not happen again.

Again The Supreme Court corrected this sentence and sentenced the attackers to 15 years in prison. Legal reform continued. The PP Government called in about 30 experts in the general legislative commission tasked with examining the necessary amendments to the law. Among their conclusions, the experts recommended that all sexual offenses be considered “assault” and therefore the elimination of the category of harassment, which is the main reason for the mass protests against the Audiencia de Navarra sentence.

But the popular ones left the Government with a motion of no confidence and suspended the task. The new Administrator of Pedro Sánchez failed to take up the legislative initiative for nine months of his term before he was forced to advance the election. The coalition government formed between the PSOE and Unidas Podemos after the second elections in 2019 has been trying to enact a reform since the beginning of its journey.

The Department of Equality at the hands of United We Can has drafted a text very similar to what this political group had registered as a bill in Congress years ago. At the time of the outbreak of the pandemic, the text that saw the light in Equality was harshly criticized by the Ministry of Justice, headed by today’s judge Juan Carlos Campo. In addition to a number of legal shortcomings in the text that can be appealed to the Constitutional Court, the Department pointed out the lack of adequate mechanisms to ensure the implementation of the law and the sentence reductions that allegedly did not take into account the case law. on the question of the Supreme Court.

Pablo Iglesias, Deputy Head of Government of the time, reacted to the blows of Justice. With a broadside to Minister Campo: “There are a lot of disappointed macho in technical excuses.” The dispute caused both sides to assemble the crisis commission planned for these cases. Thirteen articles, one title and six final provisions of the legal text prepared by Equality were amended by Justice to be approved as a draft in the Council of Ministers on 3 March 2020, just one week before the Government’s decision to suspend Spain. to fight the coronavirus pandemic.

EL PAÍS put forward that first legal text and titled the information as follows: “Future law on sexual freedom provides to reduce the sentences of aggressors.” In the text, it is explained that some penalties are reduced and some are aggravated for some situations that have not been foreseen in the legislation until now. Equality then explained that the intention with the new norm was not to “more punish” sex offenders but to “better protect women”, emphasizing that the relevance of legal reform lies in developing the idea of ​​consent more clearly.

The parliamentary process has been so delayed amid a pandemic that has shut down Spain and slowed many legislative initiatives. The reform was finally approved last August. Two and a half years after his first appearance in the Council of Ministers. During this time, it has passed through many filters that the legal text had to pass. Some, such as the General Assembly for the Judiciary (CGPJ), have warned that the legislative text could have the effect of a lack of protection for victims, in some cases lowering sentences for certain sexual assaults that were previously only considered abusive.

The CGPJ report (points 241 through 245) outlines a series of reductions in minimum sentences for certain offenses, and concludes by saying that when actualized, penalties will be reviewed to “reduce the maximum limits of penalties.” it has been the exact opposite. But in no case did this advisory body, the Financial Council, the Council of State, the Congress and Senate Judiciary Committees, or the plenary sessions of both Houses, warn that the legal text had forgotten a provisional provision that was always in effect. Whenever the Penal Code is amended and this serves to avoid undesirable effects in the review of penalties.

In congressional debates, the right and the far right presented changes for the whole. And in some of their interventions, PP spokespersons even escaped the danger of reducing some sentences: “As you know, another of our objections is that less serious behavior should be declassified as sexual abuse and all behavior should be transformed. This means widening the penalty range to deal with the mildest cases. This may, as you well know, paradoxically assume that sexual assaults that once had a severe penalty have now been reduced.

Despite these accusations, no one informed the Government or the Ministry of Equality that if the usual transitional provision in these cases was not included, the enactment of the law could result in a downward revision of many penalties. According to all jurists, no one suggested to the Executive this solution, which is always brought when the Penal Code is amended. A solution put forward by PSOE and Podemos in the process of rehabilitating the crime of sedition. Or that the PP government included when it approved legal reform of the crime of embezzlement in 2015. It is always made as a provisional provision and is as follows: “These judges or courts will continue to examine the final sentences and the sentences the perpetrator is actually serving, not by the execution of the judicial authorities, but by applying the most favorable provision, which is considered comprehensively. In prison sentences, the Law’ Pursuant to this reform of the law, this Law will not be considered more favorable when the duration of the previous sentence, together with its conditions, is also taxed.

Why was this transitional provision not included? Minister Irene Montero assured Wednesday night, Ser in a chain interview, who did not consider it necessary. “It was so obvious that the jurisprudence would be followed and that if the sentences were part of the new set of punishments they would not have been revised downwards that it was not deemed necessary to include them.” aforementioned. Montero assured that no agency or ministry involved in the drafting of the law had told them “an interim law should be necessary”.

A lawyer consulted by EL PAÍS explains the application of this provisional provision to a real case where a rapist’s eight-year sentence was revised to be reduced to six: “The sentence (eight years) could not be revised to the New Penal Code (6 to 12 years). This happens because if you put the lower half of the old Penal Code (8 years to 10 years) at least eight years, under the new law the lower half stays from six to nine years.Eight years remains in the lower half, then according to the traditional review system This penalty cannot be re-examined, even though they appear to have told the court how much of a minimum they wish to set.

When lawmakers, lawyers and lawyers underlined the possibility of lowering sentences with the enactment of the law in the past weeks, Minister Irene Montero insisted: There is no room for reorganization of sentences from the new series of penalties that come from the new law. And the jurisprudence on this is clear. It is as clear as usual practice when the Penal Code was reformed, including the famous interim provision. However, neither the Council of Ministers nor later the Congress of Deputies included this warning in the text published in the newspaper. State official bulletin “There is still no known reduction in penalties,” Montero said a few days ago on October 7. “And unknown, macho propaganda,” he concluded.