đ° "Most feminist" Spanish government gives convicted rapists less jail time
If SĂĄnchez sacks the Equality Minister, he might blow up the left-wing coalition. If he doesn't, he gives the opposition ammunition for the general election in 2023.
Selling your progressive, left-wing coalition government as the most feminist executive in Spanish history and then allowing your female Equality Minister to drive through new sex crime legislation whose result is the immediate reduction of jail sentences for some already convicted rapists, including child rapists, and other disgusting sex offenders, is a pretty big fuck up, letâs be honest.
As big systemic fuck-ups go, though, this is more complex than the political point scoring in the headlines and the arrogant told-you-so contempt on Twitter. There is a coalition government and a general election in 2023.
The law in question is Spainâs new Full Guarantee of Sexual Freedom Act, more commonly known as the âonly yes means yes lawâ, heavily promoted by the left-wing socialist-communist SĂĄnchez government generally and specifically and intensely by the Equality Minister, Irene Montero (Podemos), and her team of gender advisors. It came into effect on October 7.
The spirit of the new law, as the minister has argued in her defence this week, and as the Prime Minister reminded people from the G20 meeting in Bali yesterday: âwas clearly to reinforce the security of womenâ, he said: âthat was the goalâ. It was a âgreat victory for the feminist movement in our countryâ. Among other things, it unified the concept of ârapeâ and removed the previous requirement for violence against the victim for the courts to label it as such, something some other European countries did years ago.
The letter of the new law, not its spirit, is the origin of the fuck up. As part of the redefinition process, it introduces new minimum and maximum sentencing guidelines for judges for different sexual offences committed in different circumstances but there are criminal law and constitutional provisions that always apply the most favourable rule to the prisoner. So a child rapist sentenced to, say, six years in prison at the minimum end of the old sentencing guidelines gets a revision of his sentence and a two-year reduction under the new law if the new minimum is set at four years.
Legal experts say that even if the government were to rush a rectification through parliament, these legal principles mean that it wonât stop the revision of sentences for all of the already convicted rapists currently in jail somewhere in Spain if their particular sentence fits in one of the new ranges for which such revision is now mandatory. As I understand it, not even the Supreme Court could unwrite the bits of the law it eventually thought especially problematicâitâs the judicial power, not the legislative bodyâdespite the Prime Minsiterâs insistence yesterday that is was now up to the courts to decide what to do about it all as a doctrinal issue. I asked this morning but it is not clear when the Supreme Court might get around to even trying.
These things take time and in that time, the general election clock is ticking.
Different legal experts reacted in different ways, as is always the case. Initially, Twitter and the media were full of lawyers rushing to prove the point and claim less jail time for their sex-offender clients. The political opposition (PP, Vox, Ciudadanos) gleefully joined in the rush towards the open political goal the government had created all by itself, âWe told you so!â was the general cry, and of course there are now demands for the minister to resign.
Almost no one has mentioned the victims and how they might be feeling.
The Podemos half of the government didnât help itself yesterday by launching a public attack blaming judges for interpreting the new law badly. It has continued with that insulting populist rhetoric today. All of Spainâs judgesâ associations, as well as the General Council of Judicial Power formally, rejected the critcism and said the problem was the faulty letter of the law produced by the government and parliament. They were just applying that new law, according to established legal principles, and this was the result. Three of the four associations called for the resignation of the Equality Minister.
Other legal experts appeared to disagree, or at least interpret things in a different manner, on Wednesday. In the northern region of La Rioja, courts said they had looked at 54 sex-offender sentences and somehow found no revision of any of them necessary. A criminal law professor wrote an opinion in El PaĂs defending the new law and how it had been drawn up, unifying the concept of ârapeâ, now based wholly on the lack of consent and with no need for there to be violence involved, âitâs not just the reduction of the legal sentence for one crime, but the fusion of two different crimes into oneâ, he said, recommending courts should carefully study each case âwith common senseâ, not just âruling in two lines that say the sentence has been loweredâ.
Some lawyers, in some places, Twitter or the odd article, warned that this might happen. The General Council of Judicial Power, in its February 2021 report prior to the legislation going through parliament, did indeed say, a year and a half ago, on pages 89 and 142 of a 150-page review document, in the middle of a pandemic, that the new sentencing proposals would lead to the revision of some sentences. But as far as I can remember, there has been no general national red-alert politically and in the media warning Spanish society at large that the new law as it had been written would lead straight to lots of rapists, including sex offenders with child victims, immediately and shockingly getting less jail time, or even being released.
Also, what role have goverment and civil service lawyers played in all of this? They are no less enlightened as to the legal subtleties and obscure but applicable principles than expert defence lawyers or judges. Why did they not bang ministerial heads together with more force to make the point and compel someone to draft a better version that would have avoided this outcome? Or did they do so only to be overruled by ministers and their advisors?
Ministers are ultimately responsible for their legislation, even the Prime Minister himself now, given his long-standing defence of the ideology and philosophy behind Monteroâs execution of the concept, but whether or not she will resign or be sacked is far from clear given the minority coalition government and the proximity of the general election next year.
If SĂĄnchez asks her to leave, the coalition might collapse. If he doesnât, he is handing Vox, the PP and Ciudadanos a massive campaign advantage, a free âwe really fucked up on law and orderâ frame, perhaps even a Willie Horton moment, months before it all begins. His immediate political survival depends on not sacking her, but that makes his chances next year worse, and the messaging from the right will be relentless if he does nothing.
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