THE LAW OF THE ONLY YES IS YES

On October 7, 2022, Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom, also known as the “Law of the only yes is yes”, came into force. We are faced with a law that has important consequences in the criminal field, especially with regard to crimes against sexual freedom.

What is new in this law?

Let’s see below what reforms have been made and how they will apply to the law.

Reform of sexual offenses

First, it eliminates the distinction between the crime of sexual assault and the crime of sexual abuse, which had generated a great deal of controversy, especially in the wake of the media case of “La manada”. Before the reform, the Criminal Code distinguished between the crime of sexual assault, which consisted of infringing on the sexual freedom of another person, using violence or intimidation, and the crime of sexual abuse, which consisted of carrying out acts that infringed on the sexual freedom of another person, but without using violence or intimidation. In both cases, the perpetrator acts without the consent of the victim.

However, following the reform, any act that infringes on the sexual freedom of another person and is carried out without that person’s consent constitutes a crime of sexual assault, regardless of whether or not the perpetrator uses violence or intimidation.

As was the case before the reform, the determining factor when deciding whether a certain conduct constitutes a crime against sexual freedom is to know whether or not the victim consented to the sexual acts carried out by the perpetrator. On this point, the new law introduces a definition of consent, establishing that consent only exists when it is freely manifested through acts that, taking into account the circumstances of the case, clearly express the will of the person.

What are theconsequences for the criminal liability of legal entities?

Organic Law 10/2022 also affects the criminal liability of legal entities, which since 2010 can be held criminally liable for certain crimes. On the one hand, the reform introduces the possibility of criminally punishing legal entities for the commission of certain crimes against moral integrity or a crime of sexual harassment by their employees or administrators, provided that the requirements set forth in art. 31 bis of the Criminal Code are met. This legislative change obliges companies to adapt their compliance programs to try to minimize the risk of the aforementioned crimes being committed within them.

On the other hand, dissolution is established as a mandatory penalty to be imposed by the judge to those legal entities that are convicted for crimes of prostitution, sexual exploitation or corruption of minors.

Review of final convictions

Finally, one of the most controversial and probably least expected consequences of Organic Law 10/2022 has been the review of final convictions for crimes against sexual freedom, which has led to the reduction of the sentences imposed on certain persons for the commission of a crime against sexual freedom and, on occasions, has led to their release. These sentence revisions are a consequence of a basic principle of Criminal Law, the principle of retroactivity of criminal laws favorable to the defendant, a principle that is contained in art. 2.2 of the Criminal Code, in force since the entry into force of said Code in 1995, which entails the application of the criminal law that was not in force at the time the criminal acts occurred, provided that it is more favorable to the accused or convicted person.

In this regard, the Supreme Court has clarified that Organic Law 10/2022 can be applied to the benefit of the defendant when, as a result of the reform, certain facts are punished with a lower penalty.