Sexual freedom is a fundamental human right which, unfortunately, has only been around for a relatively short time, and which refers to people’s ability to express their identity, sexual orientation and consent without discrimination or coercion.
If we apply this right to the workplace, to promote a culture of respect The move towards sexual freedom is essential for promoting diversity and inclusion, as well as for putting an end to gender inequality within the company on the grounds of sex or gender. Modern companies must recognise the importance of creating spaces where employees feel safe and respected, regardless of their sexual orientation, by promoting freedom of self-expression at work and fostering an ethical corporate culture.
Various studies over the past few decades have shown that when employees feel safe, respected and supported by their colleagues, this also brings significant benefits in terms of productivity, creativity and job satisfaction.
In this post, we’ll be looking at the key points of the Organic Law on Comprehensive Guaranteeson Sexual Freedom and the significance of its principles of equality and the respect they have for businesses.
What is the origin of the The ‘Yes Means Yes’ Act?
Organic Law 10/2022 of 6 September on the comprehensive protection of sexual freedom, better known as ‘Yes Means Yes’ Act, places particular emphasis on consent in sexual relationships.
The origins of this legislation are 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 subsequently reviewed and classified as a sexual assault offence by the Supreme Court, the rulings previously handed down by the Provincial Court in 2017 and the High Court of Justice of Navarre in 2018 initially classified the incident as sexual abuse.
This resolution sparked a strong wave of protest across the country, which sparked all manner of protests and condemnation from various organisations. Thanks to public pressure, the judges reversed their decision and the legislature began to take steps to impose harsher penalties for sexual abuse and assault.
The controversy surrounding the The ‘Only Yes Means Yes’ Act
This Act removes the term ‘sexual abuse’; and all unlawful acts of a sexual nature are treated as sexual assault, so that anyone who infringes upon the sexual freedom of another person who has not given their consent is punished equally.
Thus, the The «Yes Means Yes» Act» is a regulation that aims to ensure affirmative sexual consent and explicitly stated in Spain. The main problem and controversy surrounding this law lies in the interpretation and application of affirmative consent in situations involving sexual encounters, particularly in cases of sexual assault. The controversy centres on how affirmative consent is defined, demonstrated and assessed, and whether the law guarantees a protection appropriate treatment of victims in such cases. For example, by equating abuse with assault, rape was relegated to the offence of aggravated sexual abuse, setting a sentence of between 6 and 12 years and failing to take into account the aggravating circumstance of intimidation or violence. This is why many offenders have ultimately had their sentences reduced, a development which has infuriated the public and forced the proponents of this law to carry out a reform, which we will examine below.
What does the reform of the Organic Law on the Comprehensive Guarantee of Sexual Freedom entail? Key points and new developments
To avoid this confusion, the reform of the The ‘Only Yes Means Yes’ Act, a key distinction has been drawn between cases where sexual assault is committed without violence or intimidation, and those where it is committed with such elements.
Below, we set out the main points of the reform of the Organic Law on the Guarantee of Sexual Freedom
Article 178 of this Act and its sub-clauses set out the main differences from the original Act, as follows:
- “Any person who commits any act that infringes upon another person’s sexual freedom without their consent shall be punished with a prison sentence of between one and four years for the offence of sexual assault.”.
- In all cases, acts of a sexual nature are considered to constitute sexual assault where they are carried out using violence, intimidation or abuse of a position of superiority or the victim’s vulnerability, as well as those committed against persons who are unconscious or whose mental state is being exploited, and those committed when the victim’s capacity to consent is impaired for any reason.
- If the offence was committed using violence or intimidation, or against a victim whose capacity to consent has been impaired for any reason, the offender shall be liable to a term of imprisonment of between one and five years.
- The sentencing court, setting out its reasons in the judgment, and provided that there was no violence or intimidation, or that the victim’s free will was not overridden for any reason, or that the circumstances set out in Article 180 do not apply, may impose a prison sentence within the lower half of the prescribed range or a fine equivalent to eighteen to twenty-four months’ imprisonment, in view of the minor nature of the offence and the personal circumstances of the offender.
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