Case studies

There were two noteworthy legal developments in Spain this week, one of which may appear as a victory for the right, the other as a win for the left. In fact, both transcend party-political boundaries: the first essentially consists of a defence of freedom of speech, and the second in a significant alteration to sexual violence legislation, specifically that applying to rape cases.

One of this week's developments concerned Vox's campaign poster ahead of Madrid's May 4th election, which the Socialists wanted taken down. What was unclear from the start, though, is why the poster's critics couldn't argue against the ideas and claims it expressed, rather than taking the lazy option of asking for their removal from the public arena.

The poster made two straightforward claims: that MENAs (the Spanish acronym for unaccompanied foreign minors living in Spain) are taking 4,700 euros a month from the state, and that that money would be better spent on Spaniards. Also implied, of course, was the idea that most, if not all, of these young foreigners are involved in some kind of shady activity. Well - the financial claim clearly can be easily falsified or verified, and the latter two points constitute standard right wing scaremongering about immigration. If you disagree with them, argue against them.

Rightly, the Madrid provincial court rejected the Socialists' request to ban the poster, arguing that it was displayed "within the context of a legitimate ideological and party struggle". The judges also said that migration is a "social and political problem" in Spain - a fact which the right can't simplify any more than the left can ignore. It may be misleading to represent all MENAs as layabouts nicking your grandma's pension, but a quick look at the Canary Islands, Ceuta and Melilla reveals flaws in the Socialists' approach to migration.

As regards the change to Spain's sexual violence laws, it seems right to make consent or lack of it the crucial aspect of rape cases, rather than the use of violence or intimidation - a skewed focus which resulted in the counter-intuitive rulings of the 'Wolf Pack' case. But couldn't an ingenious defence lawyer construe lack of struggle as "an act that clearly expressed the individual's will [i.e. consent], considering the circumstances of the case"? In other words, where does lack of resistance cross over into consent, or at least the absence of non-consent (the latter of which isn't defined by the new law)? These, one imagines, will be the nexus of disputes in future sexual violence cases.

Perhaps more importantly, the change to the law jettisons the notion of sexual abuse. There was justified outrage when judges in the 'Wolf Pack' case ruled that no intimidation (and therefore no rape) had taken place, although five men had surrounded one woman in a darkened vestibule: any reform that classifies such situations as nightmarishly intimidating is to be welcomed.