Julia Ropero Carrasco and Sandra López de Zubiría Díaz (Universidad Rey Juan Carlos, Madrid)

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The regulation of so-called “sexual crimes” has traditionally been accompanied by significant and heated debates. If we refer to its historical regulation, it is possible to see how “honour” or “morality” have clouded adequate protection of the victim, essentially due to the mistaken identification of the harmfulness of these acts. From 1995 onwards, with the so-called “Penal Code of Democracy”, it seemed that the regulation had been translated into important improvements, especially by consolidating “sexual freedom” as the legal right to be defended, instead of the previous obsolete conceptions. However, despite the commendable effort to abandon the conventional “sexual morality”, the truth is that this reform brought with it a lack of protection for victims, especially in the area of minors and trafficking for the purpose of sexual exploitation, which led to different revisions accompanied in turn by controversy over the timeliness of the reforms.

For this reason, the controversies surrounding the regulation (and its application) of sexual offences have not ceased to be present, although it is in the wake of the well-known case of “La Manada^[1]” and the various sentences issued on the matter that Spanish society has been particularly rallied and, with it, the debate on the appropriateness of criminal reform in this area has been reignited.

As a current context, it is necessary to pay attention to the data extracted from the 2019^[2] Macro-survey on violence against women, as well as from the Report on Social Perception of Sexual Violence^[3], which shows the prominence of sexual violence in women’s lives, the problem of under-reporting of the facts and, more worryingly, the maintenance of stereotypes about sexual violence (especially with regard to the conception of the “rapist” as a sick person and not as one of the perverse derivations of a patriarchal order that maintains a strong discrimination against women in the sexual sphere and a definition of roles that promotes male domination).

For this reason, it can be seen how sexual violence is still present in our society and, more alarmingly, how penal regulation and/or its interpretation pose significant practical problems that need to be resolved. In this respect, it is true that the doctrine is not unanimous. In this sense, there are those who understand that it should be reformed for a more appropriate application, given the jurisprudential problems observed. There are also sectors opposed to reforms in this area, understanding that the proposals that have been put forward could violate principles of criminal law and contradict the traditional regulation of the Code^[4] and, finally, there is a sector that considers that, despite the possibility of establishing reforms in this context, the presence of a “patriarchal justice” will make adequate application impossible, regardless of possible improvements, which will only reach the desired end when justice is deconstructed in favour of a greater gender perspective.

Although there are numerous aspects related to the regulation that are the subject of discussion, one of the main ones is the delimitation between sexual aggression and sexual abuse. Thus, sexual assaults are considered the most serious crimes due to the use of violence or intimidation as a means of attacking sexual freedom. The penalties range from 1 to 5 years, and can be increased from 6-12 years if there is penetration with the penis (oral, anal, vaginal) or with any other body part/instrument in the last two ways. Likewise, with the possibility of establishing aggravations in both cases – up to 10 in the first case and up to 15 in the second – in the event of the circumstances set out in art. 180 PC (such as joint action by two or more persons, humiliating treatment…). On the other hand, if there is no evidence of violence or intimidation, we would be dealing with sexual abuse, the penalties for which are more attenuated, justified by the absence of these circumstances.

This distinction has generated various problems of application, such as certain requirements in the behaviour of the victim or the duration of the violent circumstance throughout the act, aspects that have been softened in case law over time. However, some are still present, as was raised in the case of La Manada and other gang rapes, which gave rise to the following controversies: does an attack on sexual freedom exercised by several subjects – older and heavier – in a place where it is impossible to get out, not constitute an act of violence, taking into account the obvious intimidating situation; is an attack on an unconscious person not violence and should it be punished just as abuse?^[5]

As a result, the lack of accommodation between a traditional understanding of rape, which can be seen in the legal text and in the interpretation of jurisprudence, and a new social perspective of what these facts represent, has become visible.

Following these events, the Council of Ministers of the coalition government between the Socialist Party and Unidas Podemos approved on 3 March 2020 the Draft Bill of the Organic Law for the Integral Guarantee of Sexual Freedom, whose final text once again generated an important political, legal and social debate, especially as a result of the slogan “only yes is yes”, which defends the need to place the emphasis on the absence of consent (denied or without the possibility of having given it) as determined by international instruments, such as the Istanbul Convention, and rejecting the requirement of circumstances such as violence or intimidation for the consideration of rape, being facts that could be punished additionally, but without being required as a defining element, an aspect that generates special reticence among the more traditional doctrine.

Nevertheless, and despite the mistrust generated by the proposals put forward, what is certain is that a legislative change seems necessary to allow for this legal-social accommodation and to offer more appropriate and reasonable responses to sexual violence, a change which must always be accompanied by an educational and social transformation, which will allow for an adequate understanding of the phenomenon of this violence – also gender violence – and which reacts to it especially in a preventive manner.

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[1] The case of “La Manada” provided us with a before and an after in the debate on the treatment of sexual crimes. During the San fermines in July 2016, five men cornered an 18-year-old girl in a doorway in Pamplona, about 3 metres square. In less than two minutes, she was penetrated orally by the five men, vaginally by three of them, twice by two of them, penetrating her a third time, this time anally, by one of them. The facts were recorded in two videos, by two of the perpetrators, the recording being interrupted “when the complainant is crouched against the wall by two of the defendants and screaming”. The Judgment of the Provincial Court of Navarre of 20 March 2018 sentenced the defendants for a continuous crime of sexual abuse by prevalence (due to the situation of manifest superiority, art. 181.3 in relation to art. 181.4 of the CP) to 9 years in prison, and rejected the application of the more serious crime of rape (art. 179 CP, in relation to art. 180), which would have entailed a sentence of up to 15 years. One of the judges issued a dissenting opinion in which he concluded that the defendants were exempt from liability, considering that the facts were consented to by the woman, even after acknowledging that they treated “the complainant as a mere object, with disregard for her personal dignity, in order to satisfy their sexual instincts”.

(Judgment available at (last accessed 21 August 2021): http://www.poderjudicial.es/search/AN/openDocument/9b718581a11c6db8/20180427).

This decision was overturned by the Supreme Court, in the Judgment of 4 July 2019, annulling the conviction for sexual abuse and applying the more serious crime of rape based on the context of implicit intimidation in which the victim was immersed. Available at (last accessed 21 August 2021): http://www.poderjudicial.es/search/AN/openDocument/83c2e5bfb97cf31a/20190708

[2] Macroencuesta de Violencia contra la Mujer 2019, Subdirección General de Sensibilización, Prevención y Estudios de la Violencia de Género (Delegación del Gobierno contra la Violencia de Género). Available at (last accessed 21 August 2021): https://violenciagenero.igualdad.gob.es/violenciaEnCifras/macroencuesta2015/Macroencuesta2019/home.htm.

[3] Informe Percepción social de la violencia sexual, Delegación del Gobierno para la Violencia de Género, Ministerio de Sanidad, Consumo y Bienestar Social. Centro de Publicaciones, 2018. Available at (last accessed 21 August 2021):https://violenciagenero.igualdad.gob.es/violenciaEnCifras/estudios/colecciones/pdf/Libro_25_Violencia_Sexual.pdf.

[4] GIMBERNAT ORDEIG, Enrique (2018). “Sólo sí es sí”, El Mundo, 25 April 2020. Available at (last accessed 21 August 2021): https://www.elmundo.es/opinion/columnistas/2020/04/25/5ea306e721efa0826f8b4656.html

[5] Judgment of the Provincial Court of Barcelona, 31 October 2010. La Manada de Manresa case, in which the judges found the slightest offence of sexual abuse in the case of a gang rape of a victim who was unconscious due to drinking alcohol. Available at (last accessed on 21 August 2021): http://www.poderjudicial.es/search/AN/openDocument/e9bb1e9a4db45db2/20191114.

Picture credits: geralt.