Crimes Against Sexual Freedom

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, represents the most profound, controversial, and tectonic transformation of Spanish Sexual Criminal Law in democracy. We are not facing a mere terminological update or a penalty adjustment, but a complete reconfiguration of the evidentiary and dogmatic architecture upon which crimes against sexual freedom rest. The fundamental change lies in the elimination of the historic distinction between "sexual abuse" and "sexual assault". Formerly, the border was marked by violence or intimidation; if these were not present, the act was degraded to abuse. Today, that dichotomy has disappeared: every sexual act performed without the valid consent of the other person is a Sexual Assault. Violence and intimidation have ceased to be constituent elements of the basic type to become aggravating circumstances or qualified subtypes, but the core of the criminal wrong has shifted entirely towards the absence of consent.

This new paradigm crystallizes in the wording of Article 178 of the Penal Code, which defines consent in a positive and restrictive manner: "Consent will 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 definition breaks with the "No means No" model, where silence or passivity could be interpreted in gray areas. Under the "Only Yes is Yes" model, silence is not consent; passivity is not consent; and lack of resistance is not consent. This imposes a colossal interpretive burden on the courts and, by extension, on the defense strategy. It is no longer enough to argue that the victim did not say no; the defense must be able to articulate an evidentiary narrative that demonstrates, through "conclusive acts", that there was such clear and unequivocal will, or at least, that the accused acted under the rational and founded belief that such consent existed.

In the daily forensic practice of Spanish courts, this has generated a scenario of considerable legal uncertainty and a real risk of reversing the burden of proof. Although the in dubio pro reo principle remains valid in theory, the reality of sexual offense trials has become extremely demanding for the accused. Often, we find ourselves in "word against word" situations where the victim's testimony, if it meets the requirements of subjective credibility, persistence, and verisimilitude (Supreme Court doctrine), can be sufficient prosecution evidence to overturn the presumption of innocence, even in the absence of physical injuries or direct witnesses. The disappearance of "abuse" means that behaviors that previously had a lesser criminal reproach now carry the indelible label of "sexual aggressor", with all the criminal, penitentiary, and stigmatizing consequences that this entails.

From a strictly technical perspective, defense in this new scenario cannot be passive. It demands surgical investigative proactivity. We analyze the context prior, simultaneous, and subsequent to the facts with a forensic magnifying glass: digital interactions (WhatsApp, social media), geolocation, toxicology (to rule out or confirm chemical submission), and witness psychology. At Alonso Sala, we understand that defending an accused in this context requires not only an encyclopedic knowledge of criminal dogmatics and the most recent jurisprudence of the Supreme Court, but also procedural courage to question accounts, identify contradictions, and shield the presumption of innocence against social and media pressure that often demands automatic convictions. We do not defend impunity; we defend the constitutional guarantees that ensure that only the truly guilty receive the State's reproach.