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?
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