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. Organic Law 4/2023 of 27 April later amended the sexual offences in the Criminal Code, adding higher penalties for sexual assault committed with violence or intimidation or against a victim whose will has been annulled (Articles 178.3 and 179.2 CP). With the sentence-review phase behind us, the reform has opened new battlefronts for criminal defence that require absolute technical specialization.

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 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 elements that, assessed together with the rest of the evidence, 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.

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. 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 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 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, a conviction brings 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. Effective criminal defence not only seeks acquittal but also to minimise these "civil deaths" in case of conviction.