The new conception of sexual freedom in the law of «only yes is yes» and its problematic retroactive application

Abstract

Law 10/2022 comes to reform again the sexual offenses both committed against adults and those committed against minors under 16 years of age, merging the two criminal figures existing in the legislation in force until October 7, 2022, sexual assaults (characterized by the existence of violence and intimidation) and sexual abuse (negatively defined without the existence of such circumstances), in a single figure now called sexual assaults, characterized by the absence of consent. Thus, the new regulation emphasizes this element: the absence of consent and not the presence of other acts for the characterization and delimitation of sexual crimes. New conception that has its origin in the social claims occurred as of 2019 regarding numerous cases that caused social alarm, consisting of multiple rapes against women who were in certain circumstances that made impossible the manifestation of express consent in the access to such sexual relations. New regulation that has already been applied by our jurisdictional bodies, and in some cases, retroactively as they consider it more favorable, causing social alarm again with certain sentence reductions. For this reason, the PSOE has proposed a reform bill with the aim of increasing the penalties that had been reduced by the 2022 Law.