If a man in Spain punches a woman and gives her a black eye or a bloody nose, he probably won’t do serious time. Most painful physical assaults are considered mere misdemeanors under Spanish law. But if he kisses her on the cheek, he can be imprisoned for a couple years, thanks to Spain’s crazy sexual-assault law.
The Times of Malta reports:
Spain’s Supreme Court on Tuesday ruled that a kiss without “tacit consent” can be considered sexual assault, just months before former football federation chief Luis Rubiales will stand trial over his unsolicited kiss at the Women’s World Cup.
The Supreme Court upheld a lower court ruling from the southern region of Andalusia which convicted a police officer of sexual assault and sentenced him to one year and nine months in jail for kissing a woman on the cheek while she was in police custody.
“A ‘stolen kiss’, and thus without express or implied consent, constitutes sexual assault in actuality,” the court said, adding that “it is clear that the fleeting contact of a non-consensual kiss represents a bodily invasion”.
“A ‘no’ from the victim is not necessary in the face of attempts to kiss a woman, but rather that for there not to be a crime, what is needed is consent. The key is consent, to the point that if consent has not been given, there has been sexual aggression.”
The issue of whether an unsolicited kiss can be considered sexual assault is a hot topic in Spain since Rubiales provoked worldwide outrage by kissing star player Jenni Hermoso on the lips during the medal ceremony after Spain beat England to win the World Cup in Australia last year.
At the time, Rubiales, 46, brushed it off as “a consensual” peck on the lips, but Hermoso, 34, said it was not.
She filed a lawsuit against Rubiales in September, telling the judge she had come under pressure to defend him both on the flight back from Australia and on a subsequent team holiday to Ibiza in the Balearic Islands.
Rubiales is set to stand trial from February 3 to 19 over the kiss. Public prosecutors have requested a sentence of two-and-a-half years in prison for Rubiales — one year for sexual assault and 18 months for coercion.
The former federation chief, who quit his post last year in the wake of the controversy, told private Spanish television station La Sexta in April that he could not understand how it could be labelled as sexual assault, saying there was “no sexual context” to it.
There are good reasons to keep police from kissing people in their custody, due to the power relationship that exists between police and people in their custody. But it is weird that the Spanish police officer is getting more time in prison than if he punched the woman and gave her a black eye or a bloody nose.
The Spanish supreme court’s ruling is due to Spain’s “Only Yes Means Yes” sexual assault law, passed by its socialist government. The “Only Yes Means Yes” law redefines everything from kisses to sexual activity as sexual assault if there is no affirmative consent. Passive acquiescence is not a defense to prosecution, only affirmative consent, so in theory, both parties could enjoy a sexual encounter, yet it could still be deemed sexual assault.
Conflating kisses with sexual assault, as Spain did, had a cost. Spain’s law redefining kisses without affirmative consent as sexual assault also retroactively reduced sentences for actual rapists who forced victims to have unwanted sex, as Euro News reported (by getting rid of distinctions between conduct of very different severity).
943 sex offenders, many of them rapists, had their sentences reduced by Spain’s “Only Yes Means Yes” law:
Since last October, when the new law came into force, 943 sex offenders have seen their jail sentence reduced.
The Spanish prime minister, Pedro Sánchez, has acknowledged what he claims to be “the biggest mistake” of his government: The new rape law, commonly known as ‘only yes is yes’.
The controversial law, which came into force last October, was meant to be stricter than the previous code in place, but instead has resulted in 943 reduced sentences of sex offenders who were convicted under the previous legislation…..The controversy arose from the fact that the reform of the law removed the distinction between sexual abuse and sexual aggression….The result was hundreds of reduced sentences as Spain’s Criminal Code establishes a principle that allows new criminal laws to be retroactively applied, only if doing so benefits the defendant.
“Only yes means yes” turns out to be a bad idea. Many women don’t want to engage in graphic sexual discussions amounting to “affirmative consent”, finding that very awkward. They prefer to passively acquiesce to a pleasurable act instead. For example, a wife may like receiving oral sex, yet find it incredibly awkward to be asked, “would you like me to perform cunnilingus on you?” or “would you like me to go down on you”? She would rather her husband just did it without asking — if she really doesn’t want it, she can always say “no.” They don’t need to graphically discuss it before he does it.
Laws like Spain’s “Only Yes Means Yes” law make life worse for such women, potentially requiring their partner to ask graphic sexual questions before performing a sexual act they enjoy. After being explicitly asked questions they find embarrassing — like “would you like me to go down on you” — such women are less likely to enjoy their sexual encounter, and a few may even feel violated or sexually harassed.
No man should even be able to force his partner to do something against her will. But it is also true that no married couple should ever have to explicitly discuss sexual activities before doing them. “Only yes means yes” laws are an invasion of privacy to the extent that they force couples to do that, by defining the absence of such “affirmative consent” as illegal sexual assault.
Such “affirmative consent” policies are also common on U.S. college campuses. Students have often raised practical concerns about the workability of affirmative-consent policies. The New York Times quotes the developer of California’s “affirmative consent” curriculum, Ms. Zaloom, saying that to comply, you have to say “‘yes’ every 10 minutes” during a sexual encounter, resulting in constant awkward communication:
“‘What does that mean — you have to say “yes” every 10 minutes?’ asked Aidan Ryan. . .
“‘Pretty much,’ Ms. Zaloom answered”
The Times quoted a female student calling it “really awkward and bizarre”:
“The students did not seem convinced. They sat in groups to brainstorm ways to ask for affirmative consent. They crossed off a list of options: ‘Can I touch you there?’ Too clinical. ‘Do you want to do this?’ Too tentative. ‘Do you like that?’ Not direct enough.
“‘They’re all really awkward and bizarre,’ one girl said.”
One supporter of “affirmative consent” legislation says it requires “state-mandated dirty talk” before intimate touching. Professors Suk and Gersen (and others) have argued that requiring students to do this sort of thing raises serious constitutional privacy issues under Supreme Court decisions like Lawrence v. Texas (2003), which struck down Texas’s sodomy law as a violation of privacy rights.
“Affirmative consent” laws have been opposed by civil liberties groups like the Foundation for Individual Rights in Education, and former ACLU Board member Wendy Kaminer. They also have been criticized by columnists like Bloomberg News’ Megan McArdle, Newsday’s Cathy Young, The New Republic’s Batya Ungar-Sargon, New York Magazine’s Jonathan Chait, and Amy Alkon.
McArdle notes that such legislation “seems to criminalize most sexual encounters that most people have ever had, which (I hear) don’t usually involve multistep verbal contracts.” Affirmative-consent legislation has also been opposed by the editorial boards of newspapers such as the Los Angeles Times, Orange County Register, and New York Daily News.
