“We do not warn in this way that the decision of the Provincial Court that is appealed here is arbitrary, lacking in foundation or contrary to any legal precept. It is a mere and reasonable consequence of the new devaluation of the conduct carried out by Organic Law 10/2022, of September 6, in the field of crimes against sexual freedom and the new model that it promoted to structure its punishment”.
The affirmation is included in the sentence referring to the key case that the Plenary of the Supreme Court addressed at its meeting on June 6, in which it examined almost thirty appeals referring to revisions of final sentences to sexual offenders as a consequence of the law of only yes is yes.
The Supreme Court has begun to notify the resolutions it addressed then, referring to both the prosecutor’s appeals against the reductions and those sentenced to whom they had not been granted. They went ahead unanimously, except in one case: the record reduction of nine years in prison for a man convicted of a triple rape in which violence was used. The 25 years imposed were reduced to nine, as a result of the reduction of the minimum sentence for an aggravated violation, which went from 12 to seven years.
The division of the Plenary in this case led to a change of presentation. The sentence finally prepared by magistrate Leopoldo Puente has the particular votes of magistrates Andrés Palomo (initial speaker), Andrés Martínez Arrieta, Antonio del Moral, Ana Ferrer and Susana Polo.
The sentence begins by ruling out that the provisions that were incorporated into the Penal Code of 1995, when it replaced the previous one of 1973 that limited the revisions, can be applied to the reform of yes is yes. This rejection of the thesis that the State Attorney General’s Office ordered to support is common to all the endorsed reviews and did not generate division in the room.
Yes, the thesis of several magistrates did that in this case the reduction of sentences meant “breaking the proportionality” between the facts and the sentence imposed. The reason is that it was a group rape – three men, only one arrested – in which intense violence was used.
Therefore, the seven-year minimum should not be applied now, although in its day, when it was 12 years old, it was. This thesis, had it prospered, could have prevented or rectified sentence reviews in the most serious cases of sexual assault
The 10 magistrates of the majority emphasize that it was the legislator who decided to downplay the use of violence when determining the sentence, thus giving greater relevance to the ever-present element of lack of consent. They consider that it is not up to the TS to amend what the Cortes approved.
“If the mere existence of a violent commissive means led to increasing this minimum limit, the Courts would be introducing through the window what the legislator had dismissed through the door,” says the sentence.
The magistrates emphasize that the reform of sexual crimes promoted last year by the Ministry of Equality “does not involve a pure and simple modification of the nomenclature used in crimes against sexual freedom, going on to call sexual assault all the behaviors that were included until then in aggression and abuse. It is not an insubstantial, merely symbolic, nominal alteration”.
On the contrary, the Supreme Court continues, the reform supposed “a paradigm shift, a rupture, –it is not necessary to add it: legitimate–, of our traditional system. The legislator decided, in general, to dispense with the methods used to the inconsensual sexual approach […] as a discriminating element of the seriousness of the conduct, going on to consider that, in all cases and when consent is lacking or has been obtained illegally, the abstract penalty associated with such conduct should be identical: sanctioned with the same (abstract) sentence”.
The magistrates recall that the reform of yes is yes was “a parenthesis, open and closed, in our successive criminal texts”, since it was rectified last April, “to return to differentiate again now, -always, naturally, maintaining as axial element the absence of valid consent-, the punitive response in consideration of the use of violence or intimidation”.
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