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Amendment of crimes against sexual freedom

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Gonzalo Quintero Olivares and Guillermo Portilla Contreras, Professors of Criminal Law

Criminal laws have a great appeal for governments: the changes introduced in them can be well sold and, on top of that, you don’t need to know the law to give an opinion on how they should be, or so would any politician. . What the specialists say is sent with the reaction label and something else. It is clear that there is an aspect of the problem which the reformers ignore in their ignorance, and that is, when the laws leave the hands of the legislator, they are incorporated into the positive law, integrating themselves as part of a system and starting. to perform under that condition.

With the Law that inspires these lines, if it comes to see the light, we will be able to see what moves the intentions of its originators, who have no ambiguities. protect thefor the “need” that criminal laws should not be interpreted primarily in accordance with the objective of protection, that is sexual freedom (the methodological function of legal rights), but according to a “gender perspective”, which is put this way. , In this way, it is equivalent to a defense that the purpose of the defense is no longer, or not primarily, sexual freedom, but another interest what historical prostitution of women is, regardless of what happens in the specific case prosecuted.

It is known that the “reform movement” was the cause of the famous issue of “the flock”. This case was said to be definitive proof that the Corporal Code had much of its validity. the blame for the event and the (small) sentence imposed on the defendants, and because of that it was urgent to use the legislative scalpel, since everything could not be put on the Court. A big mistake, since it was the sentence of March 20, 2018 from the Provincial Court of Navarra that did not know or did not want to understand that there were violations of intimidation in that case. All any possible discrepancy: the debate was anathematized for the sake of the necessary truth. And so it came Draft Organic Law for a comprehensive guarantee of sexual freedompresent the July 26, 2021, one of the parts is used to reform the Penal Code.

The subject of the Project was widely known, therefore the A chronicle of announced death that began more than two years ago, when the PSOE minister announced that it was necessary to change the criminal laws in order to make it clear, once and for all, about crimes against freedom sex. the consent, “no” or, better said, “no but yes”, as in the case of the “Pack” the rape victim admitted that he did not declare “no”. It is clear that the Minister did not consult the Spanish Code, or did not understand it, as the criminal law did not seem to accept this “revolutionary” idea. But that was the starting signal for the race for penal reform, which Podemite ministers would soon take as a crusade, without relieving the PSOE of its responsibility in the breach of legislation recently approved by the Congress of Deputies.

The restoration, whose content was generally known rejected flatly, and I give, for example, the criticism of the Criminal Policy Study Group – no doubt conservatism – as well as other reports such as the CGPJ, as well as multiple studies published by renowned criminal lawyers. But everything was useless because the promoters of the Project are lying to them its categorical imperative: that the truth is on his side and that there is a lot of misunderstanding of his messianic task, apart from, of course, that it is not a question of law. We could go as far as that and Minister Montero herself said in the presentation of the Project that it is, above all, a manifestation of feminist progress and a victory against “patriarchal” justice.

As I said before, only some of the The Project enters criminal law, and does so through Final Supply. Most sections are intended, as well as affecting some section of the Criminal Procedure Law, recommended preventive measures, sex education in all levels of education, attention to victims, compensation for damage, things that I will not stop, although, and as examples of the technical rigor of the pre-legislator, you can find articles that are destined, expressive verbs, to avoid “secondary victimization” or to “empower the victims”, concepts typical of the current neoliberal criminal language, but insufficient for criminal law. On the other hand, the PSOE had to abandon its claim to benefit from this Law to end prostitution, as even its investment partners considered this a very complex issue that needed to be discussed separately.

The amendments to a strictly criminal order are not limited to issues related to sexual freedom, but include modifications to issues such as periods of art security. 36 CP, or the conditions for granting the conditional sentence to those convicted in crimes against sexual freedom or in degrading treatment or in relation to the dissemination of personal images, which, in addition, were already typed, or in the criminalization of sexual harassment street, where there is. Some compliment will be in bad taste. But, without a doubt, the “star question” is the differentiation that has existed until now between suppressing an attack and abuse, and, along with this, the description of when consent occurs.

It was the axis of reform and the magical formula that suppressed this difference in order to avoid too benign an application of the law, which encouraged a historical evolution that It began with the transition from the old distinction between rape, rape and indecent assault, to the separation of aggression, abuse and harassment, to finally arrive at the meeting of everything in the concept of aggression.. The IS The “main beam” of the system is lack of consent, and not the methods or the way it is produced the attack on sexual freedom. Reformers argue that all behavior is sexual not preceded by an express request or clear, unequivocal and conclusive consent it is sexual assault, and, in addition, it is established by the Istanbul Convention, which, in addition, it does not standardize all non-consensual sexual behaviour, but provides that non-consensual acts of a sexual nature must be included in cases of sexual violence. It is not the same (cf. BOE no. 137, of June 6, 2014, art.36).

As is logical, the consent entity, or, better, the truth that the rejection is present (an idea summed up by the simple pleasure of “no” either of “but yes yes” presented as a “legal revolution”(b) it must be proven at least before the Courts if the presumption of innocence is not determined (and the legal theory of the crime is to be suppressed).if comes(b) in relation to crimes of sexual assault. The Amendment includes a description of consent, in the second section.178-1, and reads as follows: “… consent will only be understood to exist when it has been freely expressed by acts which, in the light of the circumstances of the case, clearly express the person’s will…” It is certainly not an example of clarity, for a concept intended to be determined by nothing less than when a violation occurred. It will not be easy to determine that the action expresses the will, but this seems to be how the slogan “no” crystallizes. or the “but yes yes”.

The concept of consent is itself a complex matter of criminal law, and is, from an axological point of view, present in many other criminal persons, it is not possible to maintain an equal expression in all cases. Balancing acts of sexual violence and those where the victim is intimidated or abused by preemption are unfair because it is disproportionate. In addition, it would force us to reform all criminal offenses that today distinguish between violence and intimidation. To suggest that, in the field of sexual relations, a defect in consent (for example, the old theme of the false promise of marriage in rape with deception) is equivalent to the lack of consent, and, therefore, as a result on the transformation i. sexual assault, is a serious mistake.

It is true that the idea of ​​sexual relations without consent but produced without violence or intimidation, therefore, made without violence the will of the other person, is difficult to understand, but it is not impossible: the person who agrees with him. to have sexual relations with her superior, which she fears as much as she fears to offend him because of her power, she does not “really consent”, but she has not been attacked, nor she can argue that she is considered a criminal by law. in that way, and which amounts to, nothing more, the lack of consent to violent violence is more than a mistake: it is a mistake that dissolves the legal function of consent.

A lack of passion or interest, even shame, in maintaining sexual relations to which one voluntarily agrees in union with others may have a criminal meaning. aspects (age of the victim and arrogance over a, in particular), but not in a general way. Simplistic reductionism, and the equivalence of gestures or attitudes, are not compatible with the multitude of simulated situations. But the only technical solution that must be the way to the type of error invincible, but must be afraid, that the error will be considered. a macho, heterosexual and patriarchal figure.

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