Sexual Offences 2026: Balance of 'Only Yes is Yes' and New Defences
In this article
Key Takeaways
- SC Jurisprudence 2026
- Digital proof of consent
- Proactive defence
- Mistake of fact
Three years on from Organic Law 10/2022, 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, although the Supreme Court admits such recordings when they are the only exculpatory evidence, on proportionality grounds.
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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 defence 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 defence 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 analyse 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 defence evidence, applying the principle of proportionality. Our defence 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 defence 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 defence 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 defence not only seeks acquittal but also to minimise these "civil deaths" in case of conviction.
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Frequently asked questions
What has changed in practice, three years after the 'only yes is yes' law?
The core change has proven to be evidentiary rather than terminological — silence or passivity can no longer be interpreted as consent, and courts now look for evidence of affirmation, which has shifted defence strategy toward contextual digital evidence.
What kind of digital evidence does the defence rely on?
Both the prior digital footprint (months of messages that establish the context of the relationship) and the subsequent interaction (messages of normality, jokes or future plans sent shortly after the events), which recent Supreme Court doctrine treats as relevant to how consent was perceived.
Is it legal to record a sexual encounter to prove consent?
It is legally risky — recording someone in an intimate setting without their knowledge can itself breach Art. 197 CP (offences against privacy), though the Supreme Court has admitted such recordings where they are the only possible defence evidence, applying the principle of proportionality.
What is the 'mistake of fact' (error de tipo) defence in this context?
Under Art. 14 CP, if the accused acted under a genuine, unavoidable mistaken belief that consent existed — based on the other person's active participation or the context of a prior relationship — the act may be unpunishable or the penalty reduced.
What accessory consequences apply beyond a prison sentence?
Mandatory supervised release after prison, disqualification from professions involving contact with minors, and lifelong inclusion in the Central Registry of Sex Offenders.