Spanish Law of Sexual Freedom: origin and fundamental points of its latest reform

Sexual freedom is a fundamental human right that, unfortunately, has not existed that long, and that implies the ability of people to express their identity, sexual orientation and consent without discrimination or coercion.

If we transfer this right to the work environment, promoting a culture of respect for sexual freedom is essential to promote diversity and inclusion, as well as to end inequality between men and women in the company based on sex or gender. Modern companies must recognize the importance of creating spaces where employees feel safe and respected, regardless of their sexual orientation, promoting freedom of being and expression at work and fostering a company culture based on ethics.

It has been shown in various studies over the past decades that when workers feel safe, respected and supported by the group, it also has significant benefits in terms of productivity, creativity and job satisfaction.

In this post, we will address the fundamental points of the Organic Law of Comprehensive Guarantee of Sexual Freedom and the relevance that its principles of equality and respect have for companies.

What is the origin of the Law of Yes is Yes?

Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom, better known as the Yes is Yes Law, gives special importance to consent in sexual relations.

The birth of this legislation is linked to the incident known as the La Manada case, which involved a gang rape during the San Fermín festivities in Pamplona in 2016. Although the case was subjected to a subsequent review and was considered a crime of sexual assault by the Supreme Court, the sentences previously issued by the Provincial Court in 2017 and the Superior Court of Justice of Navarra in 2018 initially classified the event as sexual abuse.

This resolution provoked a strong protest reaction throughout the country, which triggered all kinds of protests and condemnation from different organizations. Thanks to pressure from public opinion, the judges rectified and the legislative body began to move to toughen penalties in the context of sexual abuse and assault.

The controversy of the Law of Only Yes is Yes

This law eliminates the term sexual abuse; and all illicit actions of a sexual nature are equated to sexual assault, in order to equally punish anyone who infringes the sexual freedom of the other person who has not given their consent.

Thus, the “Yes is Yes” Law is a regulation that seeks to guarantee affirmative and explicit sexual consent in Spain. The main problem and controversy surrounding this law lies in the interpretation and application of affirmative consent in sexual encounters, especially in cases of sexual assault. The controversy centres on how affirmative consent is defined, demonstrated and judged, and whether the law ensures adequate protection for victims in these cases. For example, by equating abuse with aggression, rapes were relegated to the crime of aggravated sexual abuse, establishing a sentence of between 6 and 12 years and not taking into account the aggravating circumstance of intimidation or violence. This is why many criminals have ended up having their sentences reduced, something that has angered public opinion and forced the promoters of this law to carry out a reform that we will see below.

What does the reform of the Organic Law of Comprehensive Guarantee of Sexual Freedom say?: fundamental points and news

To avoid this confusion, the reform of the Only Yes is Yes Law has defined a main difference between when sexual assault is carried out without violence or intimidation, or with them.

Below, we present the main points of the reform of the Organic Law to Guarantee Sexual Freedom

Article 178 of this law and its points are those that detail the main differences with respect to the original law, remaining as follows:

• “Anyone who carries out any act that violates the sexual freedom of another person without their consent will be punished with a prison sentence of one to four years as responsible for sexual assault.”
• “In all cases, sexual assault is considered to be acts of sexual content that are carried out using violence, intimidation or abuse of a situation of superiority or vulnerability of the victim, as well as those that are carried out on people who are deprived of sense or whose mental situation is abused and those that are carried out when the victim has his will annulled for any reason.”
• “If the attack has been committed using violence or intimidation or on a victim whose will has been annulled for any reason, the person responsible will be punished with one to five years in prison.”
• “The sentencing body, reasoning it in the sentence, and provided that there is no violence or intimidation or that the victim had his will annulled for any reason or the circumstances of article 180 do not exist, may impose the lower half of the prison sentence or fine. from eighteen to twenty-four months, taking into account the minor nature of the incident and the personal circumstances of the guilty party.”

Would you like to delve deeper into the regulations and laws related to equality and sexual freedom and how these are developed in the business environment? Subscribe to Educa.Pro and access the best courses and content!