Sexual Offences Reform: A New Legal Paradigm

The entry into force of Organic Law 10/2022 on the comprehensive guarantee of sexual freedom, popularly known as the 'only yes is yes' law, has meant the largest structural change in the Spanish Criminal Code regarding sexual offences in recent decades. This reform is not merely terminological; it alters the very architecture of criminal typification, eliminating the historical distinction between sexual abuse and aggression. Previously, the difference lay in the use of violence or intimidation. Today, any attack on sexual freedom without consent is considered sexual aggression, which has profound procedural and defensive implications.

Consent as the Keystone

The new Article 178 of the Criminal Code defines consent positively: 'consent shall only be understood to exist when it has been freely manifested through acts that, in view of the circumstances of the case, clearly express the person's will'. This shifts the burden of proof. In forensic practice, this forces the defence to focus not on the absence of violence (which is no longer the defining element of the basic type, although it is an aggravating factor), but on the existence of indicators of valid consent.

Sentence Review and Retroactivity

One of the most controversial aspects has been the downward review of final sentences. This is not a system failure, but the application of the fundamental principle of criminal law: the retroactivity of the most favorable penal law (Art. 2.2 CP). By unifying the types, the penological ranges were widened at the bottom to cover less serious conduct that was previously abuse. This caused, arithmetically, some minimum or medium sentences to be lower than those of the previous law.

For ongoing proceedings, this requires a meticulous comparative analysis. The new law is not always more favorable; sometimes, the application of specific aggravating factors (such as chemical submission or acting in a group) can raise the resulting sentence. The defence strategy must recalculate the possible conviction in both legislative scenarios to choose the most beneficial one for the client.

Evidence in the New Scenario

The disappearance of the requirement to prove physical violence shifts the focus to psychological and contextual evidence. Expert reports on testimony credibility gain capital relevance. It is no longer discussed whether there was a struggle (whose absence could previously indicate abuse and not aggression), but the interpretation of silences, passivity, or the victim's blocking.

"The defence must be extremely rigorous when analysing previous and subsequent communications (instant messaging, social networks) to contextualize the relationship and seek elements that corroborate the accused's version regarding the perception of consent."

Practical Consequences for the Investigated

In the penitentiary field, the reform also toughens access to benefits such as the third degree for sex offenders, requiring specific treatment programs. Likewise, registration in the Central Registry of Sex Offenders is automatic, generating a "civil death" for professions linked to education or childcare. Our work as defence does not end at sentencing but covers minimizing the impact of these accessory penalties.