Spain's Consent Law Revision 2026: What Has Changed
In this article
Key Takeaways
- 2026 Supreme Court case law
- Digital evidence of consent
- Proactive defence
- Avoidable mistake of fact
Three years on from Organic Law 10/2022 ('Only Yes Means Yes'), the core change is not terminological but evidentiary: silence or passivity can no longer be interpreted as consent, and the defence now relies on contextual digital evidence (prior and subsequent messages) to establish how consent was perceived. The mistake-of-fact defence under Art. 14 CP gains strength where the defendant reasonably believed consent existed. Recording consent without the other party's knowledge may breach Art. 197 CP, and their admission as defence evidence is not automatic: the court assesses it case by case.
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Three years after its final approval, Organic Law 10/2022 on the comprehensive guarantee of sexual freedom has consolidated a new paradigm in Spanish criminal law. What began with a fierce controversy over sentence reviews has ended in a deep transformation of daily forensic practice. With the sentence-review phase behind us, the reform has opened new battlefronts for the criminal defence that demand absolute technical specialisation. For that reason, having the advice of specialist criminal lawyers in sexual freedom offences has become essential to ensure a process with all guarantees.
Consent Expressed Through Acts: From "No Means No" to "Only Yes Means Yes"
The most radical change is not terminological but evidentiary. Silence or passivity can no longer, under any circumstances, be interpreted as consent. The courts no longer look for "resistance" (which was previously required to prove violence or intimidation); they look for "affirmation". This has shifted the focus of the defence towards contextual digital evidence.
In the absence of eyewitnesses, reconstructing the alleged will becomes a forensic analysis of the interaction:
- The Prior Digital Footprint: We analyse months of conversations on WhatsApp, Instagram or Tinder. The tone, frequency and prior explicit content can be indicators for the prosecution or the defence. It is not about judging morality, but about establishing a context of trust or desire that makes the defendant's version about the perception of consent plausible.
- Subsequent Interaction: Often, the key is not what came before, but what came after. Normal messages, jokes or future plans sent by the alleged victim hours after the events are elements that, assessed together with the rest of the evidence, can create "reasonable doubt" about the traumatic nature of the reported event.
Audio and Video Recordings: The Double-Edged Sword
Using a phone to record consent (express or implicit) has become widespread among young people. However, bringing these recordings into court is a minefield. If the recording is made in an intimate setting without the knowledge of the other party, we may be committing an offence against privacy (art. 197 CP) in order to defend ourselves from a sexual assault charge.
Their admission as defence evidence is not automatic: the court assesses it case by case, looking at how the recording was obtained and at proportionality. A common line of defence consists in challenging the chain of custody of audio recordings that the prosecution tries to exclude or presents out of context.
The Mistake of Fact Strategy
Under the new law, the defence based on "mistake of fact" (art. 14 CP) gains strength. If the defendant acted under the mistaken but unavoidable belief that consent existed (because the other person actively took part, or did not show opposition in the context of a prior relationship), the mistake excludes criminal liability (Art. 14.1 CP); if it was avoidable, the act could only be punished as negligent, and sexual assault has no negligent form. This defence requires extremely skilled questioning to show the judge that any "impartial observer" in that situation would also have interpreted that consent existed.
Penal Consequences
Beyond prison, a conviction brings further consequences: supervised release after prison (Art. 192.1 CP; discretionary for a single less serious offence by a first-time offender), disqualification from any profession involving regular and direct contact with minors for a period exceeding the prison term (Art. 192.3 CP), and entry in the Central Register of Sex Offenders and Human Trafficking, which is not for life: it is cancelled after the periods set by Royal Decree 1110/2015 (the general criminal-record periods if the victim was an adult; 30 years from the end of the sentence, with no new sexual or trafficking offence, if the victim was a minor). An effective criminal defence does not only seek acquittal, but also aims to minimise these "civil deaths" in the event of conviction.
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Official text: article 14 of the Spanish Criminal Code (BOE)
Frequently asked questions
What did the Only Yes Means Yes Law change?
Organic Law 10/2022 merged the former offences of sexual abuse and sexual assault into a single offence of sexual assault centred on consent. Art. 178.1 CP requires free consent expressed through acts that clearly reveal the person's will.
Does silence amount to consent?
No. Under the new law, silence or passivity can no longer be interpreted as consent. The courts no longer look for 'resistance' but for 'affirmation', which has shifted the focus of the defence towards the contextual digital evidence of the encounter.
What penalties does the reform provide for?
Basic sexual assault (Art. 178.1 CP) is punished with 1 to 4 years in prison and, where there is penetration (Art. 179.1 CP), with 4 to 12 years; since Organic Law 4/2023, where violence or intimidation is used or the victim's will is overridden, 1 to 5 years (Art. 178.3) and 6 to 12 years (Art. 179.2). The law also made street sexual harassment a minor offence (Art. 173.4 CP); stealthing has no offence of its own and is analysed as sexual assault for lack of consent.
Why were some convictions reviewed?
By merging the offences, some minimum and maximum penalties fell. Under the retroactive application of the more favourable criminal law (Art. 2.2 CP), the courts reviewed final convictions where the new sentencing range was more favourable; Organic Law 10/2022 contained no specific transitional regime for those reviews.
What was the corrective reform, Organic Law 4/2023?
Organic Law 4/2023, of 27 April (in force on 29 April 2023), kept consent at the centre but reintroduced higher penalties where violence or intimidation is used or the victim's will is overridden — 1 to 5 years for assault (Art. 178.3) and 6 to 12 for rape (Art. 179.2) —, readjusted the penalties and circumstances of Art. 180 (including taking advantage of a position of superiority) and raised the penalties for sexual assault on children under sixteen (Art. 181). It applies only to acts committed after it came into force, unless it is more favourable.
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Legislative reform discussed
Organic Law 10/2022, of September 6, on comprehensive guarantee of sexual freedom
See the summary of this reform, the Criminal Code articles affected and the BOE link on our criminal-law reforms page.
View the reform· BOE-A-2022-14630This page is for information purposes only and does not constitute legal advice: every case requires individual assessment. How this content is produced and verified: editorial policy.