Sexual Offences 2026: Balance of 'Only Yes is Yes' and New Defences

Three years after its definitive approval, the Organic Law 10/2022 on the comprehensive guarantee of sexual freedom has consolidated a new paradigm in Spanish criminal law. What began with a strong controversy regarding the revision of sentences has led to a profound transformation of daily forensic practice. Supreme Court jurisprudence in 2025 and 2026 has closed the debate on retroactivity but has opened new battlefronts for criminal defense that require absolute technical specialization.

Express Consent: From "No Means No" to "Only Yes Means Yes"

The most radical change is not terminological, but evidentiary. Silence or passivity can no longer be interpreted under any circumstances as consent. The courts no longer look for 'resistance' (which was previously necessary to prove violence or intimidation), they look for 'affirmation'. This has shifted the defense axis towards contextual digital evidence.

In the absence of eyewitnesses, the reconstruction of will becomes a forensic analysis of the interaction:

• The Previous Digital Footprint: We analyze months of conversations on WhatsApp, Instagram, or Tinder. The tone, frequency, and previous explicit content can be incriminatory or exculpatory indications. It is not about judging morality, but about establishing a context of trust or desire that makes the accused's version of the perception of consent plausible.
• The Subsequent Interaction: Often, the key is not in the before, but in the after. Messages of normality, jokes, or future plans sent by the alleged victim hours after the events are, according to recent Supreme Court doctrine, elements that can generate a "reasonable doubt" about the traumatic experience of the reported event.

Audio and Video Recordings: The Double-Edged Sword

Using mobile phones to record consent (explicit or implicit) has become widespread among young people. However, taking these recordings to court is a minefield. If the recording is made in an intimate setting without the other party's knowledge, we could be committing a crime against privacy (Art. 197 CP) to defend ourselves against a sexual assault charge.

Nevertheless, the Supreme Court has admitted the validity of these recordings when they are the only possible defense evidence, applying the principle of proportionality. Our defense strategy challenges the chain of custody of audios that the prosecution tries to exclude or manipulate to take out of context.

The Strategy of Mistake of Fact

With the new law, the defense based on "mistake of fact" (error de tipo - Art. 14 CP) is gaining strength. If the accused acted under the erroneous but invincible belief that consent existed (because the other person participated actively, or did not show opposition in a context of a previous relationship), the act may be unpunishable or the penalty reduced. This defense requires an extremely skillful interrogation to demonstrate to the judge that any "impartial observer" in that situation would have also interpreted that there was consent.

Penitentiary Consequences

Beyond prison, the law has toughened accessory penalties: mandatory probation after prison, disqualification for any profession involving contact with minors, and lifelong inclusion in the Central Registry of Sexual Offenders. Effective criminal defense not only seeks acquittal but also to minimize these "civil deaths" in case of conviction.