By Kieran McCartan, PhD., Kasia Uzieblo, Ph.D., and David S. Prescott, LICSW
We know that victims of sexual abuse – adults and children – do not always come forward to disclose their abuse and seek justice for what has occurred to them. This can have long lasting psychological, emotional, social, and health implications for them and often the people around them. Research and practice have provided ample evidence of why people do not disclosure, but a main reason is often that they don’t feel they will be believed or treated respectfully. One of the challenges that the criminal justice system often faces is proving a lack of consent. Cases often do not get beyond a police investigation, or they might get derailed in court. The net result is that we have a very poor understanding of the prevalence of sexual abuse both globally and country-by-country, with prevalence studies based on official and/or self-report data only being able to tell us so much. Therefore, there need to be new methods for improving the reporting and prosecution rates for sexual abuse and rape. In Spain, they are changing their approach by changing their national consent laws and the legislation that accompanies them.
In line with other countries, Spain is changing its consent laws from one based upon proving that consent was not given to ones proving that consent was given, known by the slogan, “Only yes means yes”. This means that all sexual encounters need explicit consent from all parties before they occur. The reason for this change in approach was an infamous case from 2016. In Spain, it is referred to as the “wolfpack” case, named after the WhatsApp group that the men involved called themselves. In 2016, five men gang raped a 14-year-old girl and , and recorded the rapes on their mobile phones. The video evidence indicated that the men were on the streets looking for someone to victimize. Upon selecting the girl in question, they led her off the streets to a secluded basement and raped her multiple times.
In court, it was revealed that there were seven videos, totalling 96 seconds. One of the men posted on their WhatsApp group what they had done, boasting about it and another of the men posted messages in a WhatsApp group celebrating what they had done and promising to share the recordings. There is no argument about what the men did or the age of the victim; the issue became what the girl didn’t do. The police report stated that the victim maintained a “passive or neutral” attitude throughout the scene, keeping her eyes always closed. When the case got to court the men were acquitted on rape charges, as they did not appear to use overt violence and because the girl was drunk and did not resist. Spanish law states that it is not rape if it does not involve overt violence or intimidation.
The men were jailed for nine years for sexual assault, which has a different legal standing and threshold. Not surprisingly, this was seen as too lenient and led to calls for a retrial and mass protests on the streets of Madrid with women’s rights activities arguing that it has made Spain less safe for women.
The trial led to a reconsideration of Spanish rape laws which are understandably seen as outdated and unrealistic, not evidenced-based, reinforces rape myths and misperceptions, and is nether trauma-informed nor compassionate in nature. The new “only yes means yes” legislation passed in the Spanish parliament means that “Consent can no longer be assumed to have been granted by default or silence.” This means that Spain’s rape and sexual harassment and sexual assault laws come into line with each other. it also means that people who have been victimized will no longer have to prove that they experienced violence, intimidation, or distress in the rape which is more appropriate.
Research has indicated over the years that people respond to rape and sexual assault in different ways and at different paces, which means that the reaction at the time is not necessarily as prescribed as the courts may want it to be. Therefore, it is important that we understand the individual’s perspective and take into account their narrative about what happened at the time. The other benefit of a consent-driven rape law is the removal of ambiguity because it focuses on the action not on the outcome; there is clarity around behaviour and expectation. In developing this law Spain is joining a number or countries and regions looking to change their sexual abuse and rape laws to be more victim oriented and consent driven. For instance, in 2018 Sweden changed its law which now states that the lack of consent is enough to constitute a crime (the ‘consent law’). Hence, all participants need to have actively signalled consent. Similar changes have been observed in Iceland, Greece, Belgium, and the Netherlands. In Sweden, this has led to a 75% rise in rape convictions according to some sources.
The question now is what next? what will Spain’s public education and community engagement strategy be around consent? How can consent take place? This legal change is considered by many commentaries as the next step in Spain’s response to the #MeToo movement, but that begs the question of what other preventive and responsive approaches to sexual abuse and sexual harassment will they develop?