Spain's minister for Equality, Irene Montero. / EP

Unforeseen consequences

The unintended consequences of the "Only Yes Means Yes" law means that Irene Montero has her plate full

Mark Nayler
MARK NAYLER

Equality minister Irene Montero has made quite a stir over the last week or so. Reacting to the fact that her flagship reform to Spain's rape law, passed last month and known as the "Only Yes Means Yes" law, has unexpectedly led to the reduction of prison sentences for several convicted sex offenders, she was keen to put the blame anywhere rather than on the government.

The Podemos lawmaker described the sentence reductions as a "victory for machismo" that's owed to a "lack of gender perspective" among Spanish magistrates.

Montero's outburst risks lessening the extent to which victims of sexual assault feel protected by the law. The new legislation's great strength is the central role it accords to consent - or the lack of it - in cases of sexual assault; but the equality minister apparently believes that its application will be hindered (or at least has been so far) by a judiciary blinded by antiquated views on gender.

Unsurprisingly, her accusations have outraged the Spanish judiciary, especially because 55% of its magistrates are female.

Montero has in fact made two related but distinct claims: first that it is legally incorrect to reduce existing sentences for sexual assault under the new law - that is, that the new law does not permit such reductions. She insists that the "Only Yes Means Yes" bill was vetted by legal experts, none of whom foresaw its use (or rather misuse) in this way.

And secondly, that the reason for this incorrect application of the new legislation, which has so far benefited several criminals convicted of serious sexual offences, is owed to Spanish judges' ingrained bias in favour of male defendants.

But why leap to the sexism argument straight away? If the new rape law is being applied incorrectly, the most obvious reason, or at least one that needs to be considered before any others, is that there is lack of clarity surrounding its effect on sentences already handed down for sex crimes.

Under Spanish criminal law, if new legislation changes the limitations on sentencing, new sentences can be applied to convicted criminals if they would thereby serve less prison time.

For this reason, the judges criticised by Montero claim that there's nothing legally awry about their sentence reductions.

The key issue, then, is whether they're applying the new law correctly or not - a question which can only be answered with recourse to Spain's overarching penal code and the particulars of each criminal case.

Montero has apparently ruled out the option of tweaking those aspects of the new rape law that effect sentencing. But if doing so would prevent her reform from inadvertently permitting undue leniency in sexual assault cases, it might be worth a shot.