The Attorney General’s Office publishes CIRCULAR 1/2023 following the reform of Crimes against Sexual Freedom.

On March 29, 2023, Circular 1/2023 of the State Attorney General’s Office was published on the criteria of action of the Public Prosecutor’s Office after the reform of the crimes against sexual freedom operated by Organic Law 10/2022 of September 6, also called “Law of the only yes is yes“. This circular aims to unify these criteria and provide prosecutors with clear guidelines in the interpretation of crimes against sexual freedom and the application of the corresponding penalties after the aforementioned reform.

REVIEW OF FINAL AND DEFINITIVE JUDGMENTS

As a general rule, final convictions may not be reviewed when the sentence imposed in the sentence under the previous legislation is also liable to be imposed under the new legal framework, although there is no specific transitional provision expressing this. This general rule is intended to limit the application of sentence reductions that have been occurring after the approval of the new ‘only yes is yes’ law.

The Circular of the State Attorney General’s Office provides that, in order to assess the most favorable law for the aggressor, the entire applicable norm must be assessed and the new aggravating circumstances that may be applicable must be taken into account. In addition, in the case of concurrence of crimes, a global comparison will be carried out and extreme caution must be exercised when making the correct equivalence between the repealed criminal type and the current one.

Likewise, when the reduction of the custodial sentence is appropriate, the imposition of accessory penalties such as probation, deprivation of parental authority and special disqualification for the exercise of parental authority, guardianship, guardianship or foster care, as well as for access to employment or public office and for any profession, trade or activity that involves regular and direct contact with minors, in accordance with the new regulation contained in art. 192 PC, must be considered.

GENDER PERSPECTIVE AS A BINDING NORMATIVE PRINCIPLE

The Circular pays special attention to the gender approach derived from the Istanbul Convention, which is directly applicable in Spain. This approach constitutes a guiding principle of the legal system that informs the interpretation and application of the law and the assessment of evidence. The text also highlights that the new regulation represents a paradigm shift, by assuming a model based on affirmative consent, the so-called ‘only yes is yes’, as opposed to the negative model that governed the previous legislation.

In this sense, the Circular analyzes the concurrence of consent, imposing a duty of diligence that requires exploring in a responsible manner the consent of the other party before executing acts with sexual significance, emphasizing that: “Consequently, to assess the concurrence of the consent of the passive subject of the action, the clause of the second paragraph of art. 178.1 PC requires verifying that the person responsible for the crime has not previously explored the will of the other party in a diligent manner. Therefore, those acts of a sexual nature carried out by a person who, despite not previously obtaining objectively reasonable indications of the consent of the other person, acts anyway, trying to verify through the reaction aroused from the contrary (from the conformity or opposition that awakens) whether or not consent exists,must be considered as non-consensual”.

What are non-consensual sexually significant acts?

1. Those in which the victim is led to believe that the condom will be used during penetration and it is never used or in which, using some trick, the perpetrator stealthily gets rid of the condom during intercourse(stealthing).
2. Those sexual acts performed by the physician on the patient who only consents to be examined for medical purposes.
3. Those in which the active subject takes advantage of the fact that the victim is blindfolded to exchange with another person surreptitiously and without the victim’s knowledge, or those in which the identity of the partner is impersonated.

In short, these are cases perpetrated by stealth, taking advantage of the carelessness or trust of the passive subject, which already constituted violations of sexual freedom that could be considered criminal offenses.

MENTAL INJURIES

As a consequence of the new article 194 bis of the PC, according to which “the penalties foreseen in the crimes of this title will be imposed without prejudice to the one that may correspond for the acts of physical or psychological violence that were carried out”, the penalties that correspond for the crime against sexual freedom will be punished separately from the specific acts of physical or psychological violence that were committed in its execution.

Given that the crime of mental injury is an autonomous entity, the Circular emphasizes the need for prosecutors to exercise extreme caution when investigating the existence of mental injury.