The keys to the reduction of sentences by the law of ‘only yes is yes’

With the entry into force of the new Law for the Guarantee of Sexual Freedom -known as law of ‘only yes is yes’-, the sentences of numerous convicts have been reduced, generating the opposite effect the desired, which was the greatest protection for victims of sexual violence.

One of the most publicized cases has been that of a man who abused his 14-year-old stepdaughter with penetration to which the Provincial Court of Madrid has reduced from 8 to 6 years the sentence was imposed in 2021.

Juan Jose Aretalawyer for this man convicted as the perpetrator of sexual abuse, points out that the Prosecutor’s Office has supported the lawyer’s thesis and the court has had to accept the reduction of the sentence to 6 years.

The Ministry of Equality includes the crime of sexual assault a reference to the abuse of a situation of superiority or vulnerability. This, however, is problematic, since it raises a problem of double jeopardy, something that has already been noticed by the Prosecutor’s Office.

Problems with the wording of the article that prevents distinguishing the penalties

The Prosecutor’s Office report already reported that this article 178/2 was worded in such a way that made it difficult to distinguish between the two typesso you could pose double jeopardy issues.

Therefore, if there is a sexual assault because there is violence -and it is condemned with a penalty-, if later a Penalty higher than sexual assault that has violence, “we would be taxing violence twice,” explains Areta.

With this, there would have been ways for the new legislation to contemplate these unintended effects and sentence reviews would have been avoided.

Absence of the transitory provision, which facilitates the review of sentences

It should be noted that the principle of retroactivity of the most favorable penal law is a basic and constitutional principleso it “can never be deleted”.

However, yes a transitional provision could have been introduced to establish an interpretation in the sense that if the penalty imposed under the new law fit within the penalty that was established in accordance with the old law, this would not imply in any case this favorable retroactive effect.

Thus, if the sentence was from 8 to 12 years and now the sentence is from 6 to 12, since the sentence of eight years can be imposed according to the new law, would stay in eight years (or more or less years).

If this transitional provision had been introduced, the review of the sentences would have been more difficult

Even if this transitory provision had been included, it should be interpreted in accordance with the case law of the Supreme Court which says that the principle of proportionality must be met.

Therefore, if this transitory provision had been introduced, the review of the penalties would have been more difficult “because we would have had to adjust to all that jurisprudence.”

In the absence of this transitory provision, makes it easier for judges to interpret that, under the new law, the penalty could have been less and, therefore, that these discounts take place. Despite this, they could not have been removed

All sentence revisions that are made now will be final

Juan Pedro Yllanes, judge and vice president of the Government in the Balearic Islands of the United We Can group, criticizes the way in which the Ministry of Equality has reacted to the cases of reduction of sentences qualifying the judges of “macho” and “fachas con toga”.

“It seemed wrong to me because you cannot generalize,” says Yllanes while considering that these insults only serve to “simplify the discussion”.

Qualifying judges as macho is simplifying the debate

In the case of the Balearic Islands, the magistrates who have carried out this reduction in sentences for rapists “are not exactly suspected of the slightest hint of sexism“says the judge.

To the undesired effect of the law is added its irreversibility character. Since the law of ‘only yes is yes’ is in force, “all sentencing reviews that are carried out now, even if there is a legal modification later, they will stand firm“.

The Supreme Court could modify the sentences

Nevertheless, It is not the first time that sentences have been reviewed in Spain, it already happened with the entry into force of the penal code of 1995. At that time a double revision was made because at the first interpretation What the sentencing courts did, the Supreme Court modified it and there was a second review.

Therefore, at this time it is important to wait and see what does the supreme court saybut it should be noted that, “those who have already had the sentence reviewed with current legislation, that will remain untouched by the principle of application of the most favorable criminal law“, explains Judge Yllanes in detail.

The Court of La Rioja has acted “ex officio” and no penalty has been modified

The Provincial Court of La Rioja has reviewed 54 sentences susceptible to be modified by the new law of ‘only yes is yes’ and so far none have been modified nor, therefore, has the sentence of those convicted been reduced.

Javier Brandthe president of the Superior Court of Justice of La Riojaexplains that this is due to the fact that the Provincial Court has acted “ex officio”, before the defense lawyers of the 54 asked for the review of the sentence. Thus, it has developed a review plan for all convictions in these matters and according to the reports, it has adopted a decision.

Until now, none of the penalties have been changed because in none of the cases has the public prosecutor’s office reported the modification favorably. Nevertheless, It is not a “final decision”but the decision of the Provincial Court could be appealed.

What penalties will be mandatory reviewed?

Some penalties will have to be reviewed compulsorily. One of the examples are those penalties applied by the crime of sexual assault without penetration and without consent that used to go from 1 to 5 years in prison and now it has been reduced from 1 to 4 years. Therefore, anyone who has been sentenced to five years in prison Your sentence will be reduced.

“When we talk about the maximum and minimum penalties, we will have to go case by case, but the review is very possible,” explains Marca.

The training program for judges on gender violence in Spain is one of the best in Europe

As assured Irene Montero, Minister of Equality, there are many other cases where the reduction of sentences is not taking place because they do not they misinterpret the law as other provincial courts do.

Javier Marca clarifies that this is a interpretative question of the different judges when applying a certain norm, taking into account that this law does not have a transitory provision, and anticipates that in La Rioja there will also be revisions of sorrows

In any case, the president of the Superior Court of La Rioja assures that “the training of judges has no deficiencies in terms of gender violence”. As a professor at the Spanish judicial school, he insists on defending that “the training program for judges in gender violence in Spain it is one of the best in Europe”.

The keys to the reduction of sentences by the law of ‘only yes is yes’