The law of only saying yes: Everything you need to know
On October 7, 2022, Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom, also known as the “only yes means yes” Law, 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.
At Nieto Enríquez Criminal Lawyers, a criminal law firm in Barcelona , we analyze in detail the “only yes means yes” law and the reforms introduced in crimes against sexual freedom, as well as their impact on criminal proceedings.
What new features does this law introduce?
Let’s look at what reforms have been made and how they will be applied under 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 great controversy, especially in the wake of the high-profile case of “La manada”. Before the reform, the Penal Code distinguished between the crime of sexual assault, which consisted of violating the sexual freedom of another person, using violence or intimidation, and the crime of sexual abuse, which consisted of performing acts that violated the sexual freedom of another person, but without using violence or intimidation. In both cases, the perpetrator acts without the victim’s consent.
However, as a result of the reform, any act that violates the sexual freedom of another person and is carried out without their consent constitutes a crime of sexual assault, regardless of whether the perpetrator uses violence or intimidation.
As before the reform, the determining factor in deciding whether a certain conduct constitutes a crime against sexual freedom is whether 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 expressed through acts that, taking into account the circumstances of the case, clearly express the will of the person.
What are the consequences of the criminal liability of legal entities?
Organic Law 10/2022 also affects the criminal liability of legal entities, which since 2010 can be declared 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 out in Article 31 bis of the Penal Code are met. This legislative change forces companies to adapt their compliance programs to try to minimize the risk of the aforementioned crimes being committed within their organization.
On the other hand, dissolution is established as a penalty to be imposed by the judge on those legal entities that are convicted of 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 resulted in the reduction of sentences imposed on certain people for committing a crime against sexual freedom and which, on occasion, has led to their release. These sentence reviews 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 included in art. 2.2 of the Criminal Code, in force since the entry into force of said Code, in the year 1995, which entails the application of the criminal norm that was not in force at the time when the criminal acts occurred, provided that it is more favorable for 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 acts are punished with a lower penalty.
