Abstract
The purpose of this paper is the reflection on the criminal protection of sexual freedom from a double perspective: the criminal guarantism, as a model of law and criminal legal science for constitutional democracies, and feminism, as a political theory and social movement that demands the end of discrimination against women. The criminal guarantism protects the person liable to be punished in a criminal proceeding. Feminism considers it essential in the struggle for equality to combat all gender-based violence and, in particular, sexual violence, whose manifestations are not isolated events, but an expression of patriarchal social structures. Projection of the feminist struggle strategy in Spain is the current Organic Law of integral protection of sexual freedom (LO 10/2022, de 6 de septiembre, de garantía integral de la libertad sexual), whose main changes with respect to the previous regulation are two: (1) the end of the distinction between two types of sexual attack, abuse and assault, to include all attacks against sexual freedom under the serious crime of assault; (2) and the definition of consent, as the only aspect that can exclude the unjust, understanding as such an express, of will. As the article 178 says, “it will only be understood that there is consent when it has been freely expressed through acts that, in view of the circumstances of the case, clearly express the will of the person”. These amendments, from the guarantism perspective, call for a prudent examination of their suitability and constitutional legitimacy, since they increase the penalties, especially for non-consensual sexual intercourses that, before the planned amendment, were included in the most permissible type of abuse, and that way weaken principles that must be considered in the production and application of the criminal law.
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Notes
- 1.
The work is developed within the framework of the project “Crisis of the Criminal Law of the Rule of Law: Manifestations and Trends” (SBPLY/17/18501/000223), granted by the Castilla-La Mancha Regional Communities Board and co-financed by the European Regional Development Fund (ERDF), its principal investigators being E. Demetrio Crespo, A. J. García Figueroa and myself, all professors at the University of Castilla-La Mancha.
- 2.
Ferrajoli (1997).
- 3.
Feminist theory has its genesis and develops in parallel to the subsequent historical movements of struggle for rights. In this way, there is talk of three or four feminist waves. The first of these is in line with the Enlightenment and criticizes the omission of women from the revolutionary program. The second, also known as the “suffragette movement,” began in the early nineteenth century, turning feminism into a mass movement that claimed equal rights and, above all, political equality through active suffrage or the right to vote. Finally, the third wave will expand from the 1960s onwards and will diversify into different feminisms, such as equality, liberal, radical and that of difference. The fourth wave crystallizes in “postfeminism” or “transfeminism,” which gives theoretical coverage to the struggle for the rights of transgender people, especially with regard to “self-identification” or a person’s choice of gender even if it is not in accordance with the biological characteristics. Wolstonecraft (1792), Beauvoir (1949 [2005]), Amorós and De Miguel (2005), Valcárcel (2008), and Butler (2007).
- 4.
VVAA (2019).
- 5.
“The guarantism takes the class discrimination record [...] The real ‘dangerous classes’ are no longer the social outcasts, those who practice subsistence crime, but the ruling elites, who nevertheless almost always succeed in maintaining their impunity,” Prieto (2011), pp. 131–132.
- 6.
The 1989 Criminal Code is the one that changes the protected legal right in the Spanish legal system from honesty to sexual freedom. See, LO 3/1989, dated June 21, 1989.
- 7.
The bill, approved by the Council of Ministers on July 6, 2021, essentially replicates the draft law of the parliamentary group “Unidos Podemos-En Comú Podem-En Marea.” See, Official Gazette of the Spanish Parliament. Congress of Deputies. XII legislature. Series B: Proposition of law, No. 297-1, dated July 20, 2018. The realization of this chapter took place before the final approval of the law (Organic Law 10/2022, of September 6). The considerations that are made in the paper still have value, since the definitive law has been approved with few changes with respect to the Bill. The enactment of the law has unleashed a severe political and social crisis due to the effect that the promoters of the law did not sufficiently explain: releases and reductions in the penalties of prisoners for sexual crimes as a consequence of the application of one of the Penal Law principles: the application of the “more favorable criminal law,” that is to say, the one that, ones there is a regulatory change by a subsequent law, obliges the judge to choose the one that establishes the lower penalties. The consequence of this social and political crisis is the reform of the law with only a few months of implementation to pay attention to the populist social demand to raise sanctions.We can see that social criticism is due to the little pedagogy done with this law. LO 10/2022 is, as will be said later in this work, through a series of tables with the penalties corresponding to the crimes in the “Only yes is yes” legislation, guaranties better the criminally prosecuted rights than the previous regulation. However, at the same time, the new one protects better sexual freedom because it denies that there can be tacit consent or rejects a situation of paralysis of the victim who goes into shock due to fear, or even annulment of the victim's will to act, can be interpreted as consent, through a drug like the scopolamine. In other words, the political and social crisis little after the “Only yes is yes” law entered into force is not a matter of poor legislative technique, as most social media are saying, but a lack of explanation to citizens about the operation, purposes, and limits of criminal law.
- 8.
The explanatory memorandum of the bill we are discussing in this paper declares the purpose of making equality between men and women real and effective, through the prevention and eradication of the different forms of violence against women. Thus, the project includes non-criminal measures and criminal reforms. For example, criminal conducts are expanded, with the classification of “street harassment,” “non-coercive procuring,” that is, the obtaining of profit by exploiting the prostitution of others even without coercion of the prostituted person, or “third party renting,” that is, the obtaining of profit by renting real estate for prostitution, regardless of the will of the prostituted persons. In the latter two cases, the consent of the victims does not exclude the crime due to their vulnerable nature. The reform has been in the making since mid-2018. In April of that year, the Provincial Court of Navarra ruled in the case known through the media as “La Manada”: during the San Fermin celebrations, a group of young men had non-consensual sexual relations with a 19-year-old girl, recorded part of it and proudly boasted of the event on social networks. The judgment qualified the facts as constituting the minor type of abuse (relationship without consent) and not the aggravated assault (because violence or intimidation was not sufficiently proven). There was even issued a dissenting opinion advocating the innocence of the defendants. This resolution was, in fact, the trigger for the reform that is now included in the bill LO. The most controversial point of the judgment was that of consent: the need to turn from “no is no,” to “only yes is yes,” and the requirement of not making the proof of the crime depend on the effective resistance of the victim. The root cause of the reform is, therefore, an intense and passionate social movement of feminist protest in Spain, which found obvious links with the American protest known as “Me Too.” #MeToo emerged in October 2017 to condemn the persistence of impunity for sexual assaults against women, and this following several complaints filed in this regard, some of them by celebrities, against the American film producer Harvey Weinstein. Socially and politically, the penal reform, especially regarding the increase of criminal reproach for any sexual intercourse not consented to by a woman, even if it took place without violence or intimidation, becomes a feminist campaign: the state must urgently fulfill its obligation to prevent or minimize behavior, but in a concrete way: not by focusing on particular events, but on the need to promote the rapid change of cultural and moral values and of course of judicial practices, which have obviated the gender perspective, the fact of violence of all kinds and also sexual, exercised on women for being women.
- 9.
- 10.
“Therefore, criminal guarantism [...] clearly means contemplating and approaching criminal law necessarily from its limits, that is, from the basic rights established in the constitutions and the human rights enshrined in the different international conventions and treaties, which poses quite a few problems of constitutional-criminal hermeneutics that have yet to be developed in the context of the so-called global law, where the problem of overlapping different levels of protection arises. Ferrajoli has spoken in this framework of the critical, projective and constructive role of the paradigm of limited power as a shaper of the historical development of the rule of law,” Demetrio Crespo (2020), p. 194.
- 11.
Atienza emphasizes that neo-constitutionalism and post-positivism are not equivalent conceptions of law. Neo-constitutionalism disregards the authoritative element of Law, its corollary being judicial activism. In contrast, post-positivism, which is represented in the conception of Law of Dworkin, Alexy or Nino, conceives “Law as a social practice guided by ends and by values, but which has to develop within certain authoritatively fixed limits,” Atienza (2019) p. 492.
- 12.
For example, terrorist actions (and terrorists are enemies) are not infringements of the law, but acts of war, removed from criminal guarantees. The term “Enemy Criminal Law,” as opposed to “Citizen Criminal Law,” was introduced by Günther Jakobs and is based on Carl Schmitt’s friend-enemy distinction. Accordingly, a citizen is a person who does not deviate from the normative behavior as a matter of principle. On the other hand, an enemy is a dangerous individual who systematically commits offenses and to whom a criminal law different from that of the citizen is applicable, with a preventive function, not of criminal behavior, but of dangers that threaten the citizen’s right to security. Jakobs and Cancio Meliá (2003), pp. 55 et seq. Guarantism arose in Italy in the 1970s specifically as a criticism of emergency criminal legislation, which put into practice the enemy criminal law. Demetrio Crespo (2004).
- 13.
- 14.
Prieto (2011), p. 105. Beccaría has already emphasized this principle of legislative science, which links taxation and neutral application of the law: “A fixed codex of laws, which must be strictly observed to the letter, leaves no other power to the judge than that of examining and judging in the actions of citizens whether or not they are in conformity with the written law; when the rule of what is fair and or what is unfair, which must rule the actions of both the ignorant citizen and the philosopher citizen, is a matter of fact and not of controversy, then the subjects are not subject to the petty tyranny of the many.” Beccaría (1764 [2008]), p. 37.
- 15.
Senese (2002)
- 16.
Ferrajoli (1997), pp. 382 et seq., develops the guarantees attached to the principle of criminal legality, distinguishing between those of mere legality (the formal guarantees of exclusive competence of the lawmaker, written character and non-retroactivity) and those of strict legality (taxativity and consistency with constitutional precepts). From my point of view, taxation can be included in the formal requirements. And consistency with constitutional principles is undoubtedly a fundamental requirement, and we believe that it is best understood if it is linked to the second group of guarantees relating to the creation of law, i.e., to the substantive guarantees.
- 17.
Accordingly, the Spanish Constitution includes the principle of legality and the non-retroactivity of criminal laws (Articles 25.1 and 9.3); the prohibition of the Administration to impose penalties of deprivation of liberty (25.3); the prohibition of courts of honor (Article 26); the proscription, due to their disproportionate nature, of the death penalty, torture and inhuman or degrading punishment or treatment (Article 15); the attribution to penalties of a special positive preventive purpose, of re-education and social reintegration, as well as the express prohibition of forced labor (25.2); the right to effective judicial protection (24.1); the right to a natural judge, to defense and to the assistance of counsel, as well as to be informed regarding the accusation, to a public trial without undue delay and with all the guarantees, to use the means of evidence relevant to the defense, to not testify against oneself, to not declare oneself guilty and to the presumption of innocence (Article 24.2); the independence and irremovability of judges (117.1, 4, 5); the prohibition of extraordinary courts (117.6); the publicity and orality of trials and the motivation of judgments (120 CE).
- 18.
This is the perspective of the so-called Istanbul Convention, within the Council of Europe, the most important European international organization for the protection of human rights. See, Ratification instrument of the Council of Europe Convention on preventing and combating violence against women and domestic violence, concluded in Istanbul, on May 11, 2011 (BOE of June 6, 2014).
- 19.
- 20.
See, Tubert (2003).
- 21.
Feminists denounce the fact that women’s equality in the public sphere has been achieved at the cost of maintaining structures of discrimination in the private sphere.
- 22.
- 23.
- 24.
These laws are intended to provide a comprehensive legal treatment of gender violence, including educational, labor, economic, political and welfare reforms to change the culture of women’s subordination.
- 25.
See, Spanish CP Articles 148.4° and 148.5° (Injuries); 153.1 (Abusive Treatment); 171.4° (Threats and Intimidation).
- 26.
See, SSTC 59/2008, of May 14 and 45/2009, of February 19. According to the Constitutional Court, the aggravating circumstance punishes “a deep-rooted type of violence that is a manifestation of discrimination, a situation of inequality and power relations between men and women.”
- 27.
This critical position was reflected in several separate opinions to the aforementioned judgment. The criticism would be mitigated if the aggravating circumstance establishes “to assess whether the basis for the aggravation of the penalty is found in a specific case of aggression perpetrated by a man against a man who is or has been his partner. It is not a matter of proving motive or intention, but of proving that the assault occurs in a context of domination” (Turégano 2011).
- 28.
See, Ratification instrument of the Council of Europe Convention on preventing and combating violence against women and domestic violence, concluded in Istanbul, on May 11, 2011. BOE of June 6, 2014.
- 29.
De Vicente (2018), p. 213: “Amendments to the Criminal Code will only have a positive effect when accompanied by substantial changes in the social, political and moral conceptions of those involved in its application, that is, when judging with a gender perspective which simply translates into requiring the Judiciary to reason with a logic different from that of past times, which is useful to remove the obstacles that hinder effective equality.”
- 30.
Bodelón (1998), p. 185.
- 31.
See, Articles 178 et seq.
- 32.
Faraldo Cabana and Ribas (2018), pp. 289–290.
- 33.
Thus, the aggravating circumstances of abuse are covered in Article 181. 5. “The penalties set forth in this article shall be imposed in the upper half if the third or fourth circumstance of those provided for in paragraph 1 of article 180 of this Code is applicable.”
- 34.
See, Article 180 et seq.
- 35.
See, Article 36 concerning sexual violence, including rape, paragraph 2 of which states: “Consent must be given voluntarily as a manifestation of the free will of the individual considered in the context of the surrounding conditions.” Feminism, in general, has interpreted this provision as a slogan to change the notion of consent and its proof for the purpose of establishing sexual offenses: the general rule is that consent to sexual intercourse must be express, conclusive and unequivocal.
- 36.
See, De Vicente (2018).
- 37.
Faraldo Cabana and Ribas (2018), p. 291. The reform proposal, in fact, on the contrary, adds a disvalue to the behavior consisting of pharmacologically overriding the victim’s will (aggravating circumstance 180. 6th).
- 38.
The victim, for example, is left unprotected when it is considered undue advantage instead of intimidation (abuse instead of assault) in cases where there is a plurality of attackers and the victim is in shock. The facts concerning the famous La Manada case were qualified as constituting abuse and not assault, both in the first instance (Judgment 38/2018, of April 20, issued by the 2nd section of the Provincial Court of Navarra), and on appeal (Judgment 473/2018, of November 30, issued by the Civil and Criminal Chamber of the Supreme Court of Justice of Navarra). On appeal, Judgment 344/2019, dated July 4, 2019, issued by the Second Chamber of the Supreme Court, recognizes sexual assault, overturning the conviction of sexual abuse.
- 39.
Faraldo Cabana and Ribas (2018), pp. 293–294.
- 40.
See, Marco Francia (2018), pp. 311–313. The dysfunctions caused by the distinction between violence and intimidation, on the one hand, and undue advantage, on the other hand, makes the criteria adopted in other sexual offenses preferable, as in the case of submission to prostitution conditions and human trafficking, where “this comparison has not only not raised doubts, but has softened the evidentiary problems. In addition, it has also helped to avoid in many cases the secondary victimization of the victim during a criminal proceeding that often deviates the attention completely to the victim, leaving behind the aggressor, thus failing to fulfill the obligation imposed by Articles 19 and 25 of Law 4/2015, of 27 April, on the Statute of the Crime Victim,” Faraldo Cabana and Acale Sánchez (2018), p. 28.
- 41.
Accordingly, the reform proposal maintains three of the four criteria that differentiate offenses: it continues to count whether the victim is older or younger than 16 years old (since Chapter II bis is kept, under the same heading “Sexual abuse and assault of minors under sixteen years old”). Moreover, as with the previous regulation, it is relevant whether the behavior that violates sexual freedom involves carnal access or not, the term “rape” being used in common parlance to refer to non-consensual carnal access. Finally, the concurrence or not of aggravating circumstances is also a modulating criterion for these offenses and their penalties.
- 42.
The Women Judges Association considers the new wording of the consent to be adequate, although its proposal is more vindictive or demanding from a gender perspective in two ways. First, inspired by the bill to reform the Catalan law 5/2008 on the right of women to eradicate male violence, it proposes to add to the basic type of assault (178.1) the requirement that the person who is going to have a sexual relationship must ensure that consent subsists at all times and for each practice: “consent must remain in force throughout the sexual practice and is limited to one or more persons, to certain sexual practices and to certain precautionary measures, both for an unwanted pregnancy and for sexually transmitted infections.” This eliminates defensive arguments such as “since she wanted sex, I performed anal sex, even though she didn’t want to do it.” Second, the AMJE does propose to distinguish between assault and aggravated assault; that is, between a basic type (paragraph 1 of 178) and an aggravated one (paragraph 2 of 178), but the aggravated one would not be defined by the concurrence of violence or intimidation, but by any other circumstances, including those of the traditional abuses, such as undue advantage or deception. This would be the proposed wording: “the penalties provided for in the preceding paragraph shall be imposed in its upper half when the sexual assault is carried out using violence, intimidation or abuse of a situation of superiority or vulnerability of the victim, as well as those that are perpetrated on persons who are deprived of sense or whose mental situation is abused and those that are performed when the victim’s will is suppressed for any reason.” These are aggravating circumstances and in all of them the perpetrator uses a kind of “malice aforethought” to ensure the result, so there is no justification for punishing them as the basic form. Based on proportionality, in these cases of malice aforethought, it is proposed to apply the penalty in its upper half: imprisonment of 2 years and 6 months to 4 years.
- 43.
In fact, the bill lowers the penalties in relation to the current regulation of assault: without carnal access, a maximum of 4 years is established, compared to the current 5 years; and with carnal access, a maximum penalty of 10 years is established, compared to the current 12 years. And without carnal access, but with an aggravating circumstance, a maximum of 6 years is established as opposed to the current 10 years, and with access and an aggravating circumstance, a maximum of 12 years is established as opposed to the current 15 years. Even when multiple aggravating factors are involved, the maximum limits are lower (9 years, without carnal access; 13 years in case of carnal access) than those currently established for aggravated assault.
- 44.
In fact, there is an additional change regarding aggravating circumstances that has already materialized in two circumstances included in the recent LO 8/2021, of June 4, on the comprehensive protection of children and teenagers against violence, whose objective is to protect vulnerable people because they are minors, sick, disabled, etc., or because the attack occurs against people linked by kinship or in the context of cohabitation. These circumstances, therefore, are not specifically aimed at protecting the sexual freedom of women, but of other persons in vulnerable situations.
- 45.
Thus, in cases where the victim is either deprived of her will or the aggressor or aggressors override it, the penalty is considerably increased, because it goes from being a case of abuse punishable by 1–3 years (without carnal access) or 4–10 years (with carnal access), to being an aggravated assault, punishable by 2–6 years (without carnal access) or 7–12 years (with carnal access).
- 46.
In addition, regarding the circumstances that mitigate criminal liability, it should be noted that the reform contemplates a reduced penalty for the so-called “minor cases of assault that do not involve rape” (carnal access or similar conduct). Thus, it states in Article 179.3: The Judge or Court, explaining the reasoning in the sentence, and provided that there are no aggravating circumstances, may impose a prison sentence of a lesser degree or a fine of 18–24 months, considering the minor nature of the act.
- 47.
See, Article 46: Aggravating circumstances. “The Parties shall adopt the necessary legislative or other measures in order to ensure that the following circumstances... may be taken into consideration as aggravating circumstances in the determination of penalties for the offenses provided for in this Convention.” Section (a) The offense was committed against a current or former spouse or domestic partner, in accordance with national law, by a family member, a person living with the victim or a person who has abused his or her authority (Ratification instrument of the Council of Europe Convention on preventing and combating violence against women and domestic violence).
- 48.
For García Figueroa, feminism has become the most advanced of all the populist movements. The gender vindication, in the first place, is spiritualized and becomes independent of economics and biology. As it became independent of the economy, it brought together women from all economic groups and social classes. By becoming independent of biology (sex is replaced by gender, a social construct), it brings women and men together because what is being criticized is a system of domination, heteropatriarchy, which would dominate not only women, but also men. In this way, feminism represents the people against the caste. The political scene is divided between friends (feminists regardless of their genes) and enemies (male chauvinists regardless of theirs). García Figueroa (2020), pp. 17–18; García Figueroa (2021).
- 49.
Thus, in the Report of Judges and Women Judges for Democracy (2021), although it is valued that bringing all sexual offenses under the category of assault implies progress in the sexual self-determination of women, it recognizes an increase in penalties for milder behaviors and a risk of stigmatization and problems of reintegration for those accused of sexual offenses. The also reports a lack of proportionality in the equal punishment of an assault with violence or intimidation as without it. Both reports warn that the failure to distinguish between more and less serious means of perpetration constitutes an obstacle to the adequate fulfillment of the criminal prevention function.
- 50.
“If the reform goes forward, it will constitute the same punishable offense with the same penal framework a sexual assault imposed by means of a knife on the victim’s neck as the same sexual intercourse carried out abusing a situation of superiority of the perpetrator over the victim” (Lascuraín 2021, pp. 90–91).
- 51.
De Vicente (2018), p. 183.
- 52.
Thus, 178.1 states that there is no consent when “the victim has not freely expressed by external, conclusive and unequivocal acts, in accordance with the circumstances, his or her express will to participate in the act.”
- 53.
Quoting Women Judges Association... On the other hand, the Report of the General Council of the Judiciary and that of JJpD (Judges and Women Judges for Democracy) emphasize that the current definition of sexual offense, based on the absence of consent, is not the problem that causes victimization. They deny the idea that the current consent conception requires proof of refusal or resistance. Secondary victimization (a process in which it appears that the victim is under judgment for her sexual behavior) does not derive from a definition of consent that is demanding on the female victim, but from the procedural rules of the burden of proof. The presumption of innocence requires, in criminal proceedings, that the defense does not have to prove that the defendant did not perpetrate the criminal act, but that it is the prosecution that bears the burden of proof. As long as this burden of proof of the prosecution is maintained, the conditions for secondary victimization will continue, because the trial will be about the victim’s behavior in giving such consent and this in order to determine the ambiguous “concurrent circumstances.”
- 54.
Gascón Abellán (1999).
- 55.
On the one hand, if it is a substantive rule that considers the lack of consent as the lack of a manifest and express will, it will result that the rule is unfair, as it includes the punishment of non-injurious behaviors, of sexual behaviors agreed to by the victim, although with a consent that is not manifested, or not express, or not external, or not conclusive, or equivocal. If it is a procedural rule that indicates when the specific factual element of lack of consent must be considered proven, the rule will be contrary to the fundamental right to the presumption of innocence insofar as it considerably reduces the requirement that the elements of the offense must be established with certainty, beyond reasonable doubt. As stated by Tatjana Hörnle, a specialist in the field and advisor to the German reform in this regard, if for a hypothetical observer “it is not clear whether there was consent, if the situation is really ambivalent, it would be unfair to punish the alleged aggressor (El País, March 8, 2020),” Lascuraín (2021), p. 94.
- 56.
As Demetrio Crespo (2020) clearly points out, democratic constitutions, such as the Spanish one, impose a minimum, necessary and proportionate model of criminal law, but the spirit of the current times seems to play against this model. Dogmatics is becoming less and less critical and is placed at the service of the practice of the new criminal trends, where the enlightened, guarantism-based principles are disregarded and we are witnessing a real metamorphosis of criminal law. This metamorphosis is expressed, first, in the “deconstruction” of the “guarantism-based paradigm,” as we know it delegitimizes criminal law; second, in its trivialization-expansion; third, in the rise of the retributionist approach; fourthly, in the justification of exceptions to legislative and procedural guarantees, appealing to the confrontation between citizens and enemies of security (enemy criminal law); and, finally, in populism, which is evidenced in a repressive euphoria against different criminal sectors, encouraged by ideologically polarized parties or social groups in competition for votes and power.
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Marcilla Córdoba, G. (2023). For a Feminist and Guarantism-Based Methodology in the Criminal Protection of Sexual Freedom. In: Demetrio Crespo, E., García Figueroa, A., Marcilla Córdoba, G. (eds) Crisis of the Criminal Law in the Democratic Constitutional State. Legal Studies in International, European and Comparative Criminal Law, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-031-13413-5_8
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DOI: https://doi.org/10.1007/978-3-031-13413-5_8
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