The Spanish Minister of Equality, Irene Montero (Photo By Eduardo Parra/Europa Press via Getty Images)

Spain’s feminist own goal

Its far-left government sought to harshen sentences for rapists. It ended up de-jailing some instead

Artillery Row

In the wee hours of 7 July 2016, the #MeToo movement took Spain by storm — a year sooner than Hollywood and with a year’s worth of extra virulence. At noon the previous day, a storm of fireworks launched from Pamplona’s town hall — the txupinazo — had marked the 425th edition of the San Fermines. This annual weeklong celebration is best-known for the running of the bulls famously fictionalised in Ernest Hemingway’s The Sun Also Rises (1926). Alas for Pamplona, that year’s feast is remembered, well beyond the Navarra region, for an altogether different firestorm, a race to leave behind a different kind of beast. What transpired that early morning ended up placing sexual violence squarely at the centre of Spain’s public debate, radically altering the country’s perception of gender — perhaps irrevocably.

A group of five men from Sevilla between the ages of 28 and 31 — one a cop and another in the military — had been taking turns at sexually accosting an 18-year-old who had lost her group. Seeing as she only meekly rebuffed their attempts, the five-man herd — “la manada”, per their WhatsApp group, after which the ensuing trial was named — took the unnamed girl on a stroll, into their car and to several locations within Pamplona’s downtown, all without her explicit consent. What followed sends shudders down this writer’s spine. The victim had her phone taken away, was taunted, made fun of and groped — all recorded on video and boastfully shared. At a residential building’s entrance hall, she underwent intermittent sexual assault, barely awake. 

What ensued laid bare the tension between #MeToo feminism and due process

After she immediately reported it as the rape she felt it had been, it took nearly two years for the case to be tried in regional court. When it did, her grievances — and those of a substantial share of Spanish women — were far from redressed. The jury found the men guilty of abuse but not assault, sentencing each to nine years in jail and fining them €50.000 destined for the victim. The Spanish legal code — and to this day, that of most comparable democracies — made a sharp distinction at the time between the two offences: both lack consent, but only when an unwanted sexual act involves violence or intimidation — which the judges found this one not to — can it be considered assault (agresión). What’s more, one of the judges disregarded the case as even failing the test of sexual misdemeanour, deeming the victim had failed to make known her displeasure.

What ensued laid bare the tension between #MeToo feminism and due process. The court’s alleged lenience, reaffirmed on appeal by Navarra’s high court that December, unleashed the ire of more demonstrators than had been ever sent into the streets in Spain’s 40-year democracy. Feminist groups decried that a hetero-patriarchal justice had favoured rape, leaving women defenceless. Transgressing against the independent judiciary, the Justice Minister of an unpopular right-of-centre government picked apart the lone dissenting judge, adding to the pile-on by his leftist peers. The UN and the European Parliament both weighed in against the ruling. In June the following year, Spain’s high court drew on its own jurisprudence to hike the sentences up to 15 years, deeming the intimidatory behaviour qualified for assault. Justice, under popular pressure, had been served.

The women’s march on justice didn’t stop at that. All non-consenting sex should be considered assault, began to intone hardened feminists with their chanted slogan of “only yes means yes” (sólo sí es sí), and should be meted a minimum sentence higher than the five year threshold for abuse. Had the herd’s five, who lacked their victim’s express consent throughout, been trialled on that count, the feminists claimed, she would have been spared the victim’s guilt. Spanish women at large would walk the streets safely in the assurance that any men making unsolicited advances on them would be risking 15-year prison terms. All sexual offences, therefore, should be judged equally. What they overlooked is that by unifying the two without raising the maximum sentence, you left the more serious of the former two offences open to a more lenient sentence than before.

The bill is already proving ill-thought-out in all the foreseeable ways

This potential glitch is nothing that couldn’t potentially be solved with legislative forethought — such as by raising the maximum sentence for the merged offence — but one of modern feminism’s core features is that it demands change in the here and now, never mind the details. In June 2018, a coalition of the socialist PSOE party, the neo-communist Podemos and a slew of left-regionalist parties took office and went on to set up a Ministry of Equality headed by the feminist firebrand Irene Montero, the former wife of the iconic, ponytailed Podemos leader Pablo Iglesias. One of Montero’s signature efforts is a new bill that went into effect in early October under the title “only yes is yes”. The bill creates a single category of sexual offence with sentences ranging from the minimum for abuse to the maximum for assault.

A few days away from the International Day for the Elimination of Violence against Women, the bill is already proving ill-thought-out in all the foreseeable ways and despite the warnings of some of the government’s coalition partners as the bill worked its way through Parliament. As in all civil law countries, Spain’s edicts are applied retroactively. When this piece went to press, twelve jail terms for assault had been reduced, and five sexual convicts had been altogether freed up. Although Montero had initially dismissed warnings that the net effect of the bill would be a lightening of sentences as “sexist propaganda”, her Ministry is quickly working to repair the damage by getting the courts and the Attorney General on the same procedural page. Regardless, the damage to the rule of law has been done. One Podemos lawmaker has disparaged judges who reduce sentences as “gowned fascists”.

The bill’s most egregious beneficiary may prove the Manada’s own Ángel Boza, whose lawyer has petitioned for a downward adjustment. The victim has come out again complaining that she feels “unprotected” by the bill. Most well-meaning jurists — in the press and in the lecture halls — are in a state of sheer disbelief that such an act of legislative amateurism could be carried out in the name of women’s safety from sexual predators. Worse still, judges are finger-pointed as the culprits when the law meets its unintended consequences. What are women to make of this? Those waging Montero’s war long ago abandoned any pretence to care for due process and the independent judiciary. Those instead concerned with extending legal protections to vulnerable women may well hope to eschew any common cause with Montero.

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