The new law would mean consent would have to be explicit. Yes would mean yes and anything else, including silence, would mean no. Therefore, sex without explicit consent would be considered rape.
The move comes after the verdict of the “La Manada” gang, wolf pack case.
Five men in the gang were accused of raping an 18-year-old at the 2016 Running of the Bulls fiesta in Pamplona. Two of the men filmed the assault, during which the woman is silent and passive. In a move that shocked and outraged people all over the globe, the judges interpreted this as consent, one judge even commenting that she was enjoying herself. The charge was dropped from rape to sexual assault.
Under current Spanish law, rape must involve violence and intimidation. The five men are now out on bail, pending an appeal against their nine-year sentence.
In her summing up for the prosecution, Elena Sarasate said: “The defendants want us to believe that on that night they met an 18-year-old girl, living a normal life, who after 20 minutes of conversation with people she didn’t know agreed to group sex involving every type of penetration, sometimes simultaneously, without using a condom.”
Patricia Faraldo Cabana, a law professor at the University of A Coruña, who helped the left-wing Podemos party draft the legislation, said the proposal understood consent not just as something verbal but also tacit, as expressed in body language.
“It can still be rape even if the victim doesn’t resist,” she said. “If she is naked, actively taking part and enjoying herself, there is obviously consent. If she’s crying, inert like an inflatable doll and clearly not enjoying herself, then there isn’t.”
In a letter to a Spanish TV station, the la manada victim wrote: “Don’t keep quiet about it because if you do you’re letting them win. No one should have to go through this. No one should have to regret having a drink, talking to people at a fiesta, walking home alone or wearing a miniskirt.”
The law mirrors similar legislation that came into force in Sweden at the beginning of July.