A. Introduction
After an overwhelming majority of academia approved of and praised extensive reforms of rape laws in 1989 and 1995—and subsequent revisions in 1999, 2003, and 2010—few voices raised objections or advocated changes in the Spanish criminal justice system regarding sex crimes. Only a minority of feminist lawyers and scholars maintained that the statutes and the criminal justice system continued to reflect a legacy of patriarchy, employing assumptions and standards about consent, force, resistance, and “proper” behavior of victims that were biased against women in cases of sexual violence. It was generally ignored that the standards of rape law and the procedures to enforce those standards failed to account for the perspective and interests of women.
This situation of self-complacency radically changed in 2016. The turning point was the controversial trial of five men accused of gang-raping a young woman during the San Fermín (Running-with-the-Bulls) festivities in July of that year in Pamplona. They led her into the lobby of a residential building, undressed her and took turns having sex with her, penetrating her at least ten times in less than thirty minutes, vaginally, orally, and anally without using a condom. Frozen in shock, she shut her eyes and waited for it to end. Two of the men recorded 96 seconds of the incident with their cell phones. One of them sent celebratory messages about their “conquest” on his WhatsApp chat in the hours after the rape: “Good morning. The five of us fucked one girl. Hahaha.” “We have video,” he added. By that evening, the five were already behind bars. The case is known as La Manada, or the Wolf-Pack case, because the men called themselves so in their WhatsApp chat group. In April 2018, the five men were acquitted of rape on the grounds that they did not employ violence or intimidation to subjugate the victim. The Pamplona-based court ruled that they were guilty only of the lesser crime of sexual abuse and sentenced them to nine years in prison. This first ruling was upheld in an appellate court. In the last and definitive decision handed down in June 2019, the Spanish Supreme Court reversed the lower courts and affirmed that the men were guilty of rape, sentencing them to fifteen years in prison.
The massive public reaction to the case sparked an extraordinary social movement. For many women across the country, even before the final verdict was handed down, the case had been a moment of reckoning, laying bare a deep culture of misogyny both in Spanish society and the criminal justice system. A tremendous indignation at a patriarchal system that neither protects nor believes assaulted women triggered mass protests. An unprecedented, emboldened feminist movement geared up and organized protests, calling for Spain’s sexual assault laws to be rewritten as a sign of solidarity with the case’s victim. Such a call fell into line with sex laws changing in European countries, such as Germany Footnote 1 and Sweden. Footnote 2 In other countries, like Denmark, Finland, Greece, and Portugal, legislators are considering amendments to ensure that such offenses are based on the absence of the victim’s free consent. The urgency of these legal contemplations is boosted by the enactment of the Council of Europe’s Convention on Combatting and Preventing Violence against Women and Domestic Violence (hereinafter Istanbul Convention) in 2011.
Intense scrutiny by the international press Footnote 3 in the wake of the #MeToo movement and international condemnations Footnote 4 of the Wolf-Pack verdict influenced the Spanish reassessment of Spain’s laws on rape. Only a few days after having applauded the sentence as “harsh enough,” Rafael Catalá, the Minister of Justice in Minister President Rajoy’s right-wing government, ordered the codification commission—a ministry advisory body—to evaluate a potential revision to the Penal Code Footnote 5 in terms of the categorization of sex crimes. Footnote 6 The report was submitted to the following Minister of Justice, Dolores Delgado, from the Socialist Party. Within months, both the far-left Podemos party and the right-wing Popular Party vowed to change Spain’s rape law and presented reform proposals. Footnote 7 Plans to improve the system, however, hung in the air for months, as the national parliament remained in a deadlock due to political instability. After a new socialist-led coalition government took power in January 2020, the Equality Minister Irene Montero, acting on a pre-election promise to strengthen laws in defense of women’s rights, promoted a Sexual Freedom draft bill that defines all non-consensual sex as sexual aggression and, in cases of penetration, as rape. Even though the draft must be examined by two state commissions before being voted on by Spanish Parliament—a minimum six-month process—it has already prompted strong criticism from the conservative right in Spain and triggered the first major dispute between the two partners in Spain’s leftist coalition government, Footnote 8 reflecting how significant the feminism issue is in Spain.
B. The Emperor’s New Clothes: Sex Crimes in the Spanish Penal Code
Sex crimes, including rape, are regulated under Article 178, of the Spanish Penal Code.Footnote 9 Article 178 introduces a distinction between “sexual aggression” and “sexual abuse” that is very important for the purpose of this Article, as it lies at the core of the protests against the Wolf-Pack verdict.
A person shall be guilty of a sexual aggression when that person offends against the sexual freedom of another person using violence or intimidation. Violence and intimidation correspond with each other as they both contain elements of coercion, injury, and threats. It must be clear that these elements are effective and sufficient to overcome the will of the victim. It is necessary that, but for the violence or intimidation caused by the accused, the victim would not have been assaulted. When found guilty, a person shall be punished for sexual aggression with a sentence of imprisonment from one to five years. When the sexual aggression consists of penile-vaginal, anal, or oral penetration, or inserting body parts or objects into either of the former two orifices, the offender shall be convicted of rape, also called “aggravated sexual aggression,” with a sentence of imprisonment from six to twelve years, which is extended from twelve to fifteen years in cases of special circumstances. Footnote 10
Besides sexual aggression, the Spanish Penal Code contains a second category of offenses labeled “sexual abuse.” Whoever, without violence or intimidation, perpetrates non-consensual acts against the sexual freedom of another person, shall be convicted of sexual abuse with a sentence of imprisonment from one to three years or a fine of eighteen to twenty-four months. Non-consensual sexual abuse also includes acts perpetrated on persons who are unconscious or whose mental disorder is taken advantage of, and those committed by overcoming the will of the victim using narcotics, drugs, or any other natural or chemical substance that can be used for such purpose. The same punishment is imposed when consent is obtained by an offender availing himself of a situation of manifest superiority that deprives the victim of liberty. Again, whenever the sexual abuse consists of penile-vaginal, anal, or oral penetration, or inserting body parts or objects into either the vagina or the anus, the person shall be convicted of aggravated sexual abuse with a sentence of imprisonment from four to ten years. Alongside these provisions, the Spanish Penal Code also dedicates some articles, specifically, to sexual abuse, sexual aggression, and other sexual offenses perpetrated against children under the age of sixteen and, separately, children between the ages of sixteen and eighteen.
As we can see, both sexual aggression and sexual abuse include penetrative and non-penetrative offenses. The difference between sexual aggression and sexual abuse is centered only in the use of violence or intimidation. Spain, like other EU member states, legally recognizes an assault as rape—also called aggravated sexual aggression—only when unwanted oral, anal, or vaginal penetration is achieved through violence or intimidation.
This was not always the case. In fact, the traditional definition of rape in Spain was not based on the coercion model. Until 1989, rape was defined as the penile-vaginal sexual intercourse with a woman by means of force or intimidation, or sexual intercourse with an unconscious or mentally incapacitated woman or with a girl under twelve. Therefore, rape was defined in terms of both force or lack of consent, including cases in which the victim—always a female—did not have the opportunity to express her opinion due to being asleep, drugged, or drunk, or may have even agreed to the sexual intercourse, but such agreement was legally deemed non-valid because of her mental illness or juvenile status. In cases where the victim of the penetrative assault was a male, or the physical act performed was not penile-vaginal sexual intercourse, the crime was called “indecent assault” and punished with a lesser penalty. Some features were modernized in 1989, mainly by describing offenders and victims in a gender-neutral way and including in the legal definition of sexual intercourse penetration with the penis or an object of the vagina, anus, or mouth. Footnote 11 These changes were partly promoted by the feminist movement, Footnote 12 which had been raising objections and advocating changes in rape law since the late 1970s. They were welcomed in literature. Footnote 13 In 1995, the new Penal Code changed the definition of sex crimes, introducing the current difference between sexual abuse and sexual aggression based on the presence of violence or intimidation. Another reform was to re-label “rape” as an aggravated sexual aggression. Following the enactment of the 1995 Penal Code, the law of sex crimes was subject to continuous scrutiny and significant reforms, with the definition of rape evolving considerably over the years. Revisions concerned, among other things, the use of the word “rape,” Footnote 14 the elimination of the oral penetration with objects as a form of rape or aggravated sexual abuse, Footnote 15 the inclusion of vaginal and anal penetration with “body parts” other than the penis as a form of rape or aggravated sexual abuse, Footnote 16 and the introduction of the use of substances to overcome the victim’s will as a form of sexual abuse, not rape. Footnote 17 These reforms mainly responded to legal technicalities. Feminist voices in civil society Footnote 18 and academia Footnote 19 denounced rape statutes and the criminal justice system as continuing to reflect a legacy of patriarchy and reflecting a disappointing lack of respect for women’s sexual autonomy that went utterly unattended by reforms. Proposed changes to the law relating to the introduction of a definition of consent and a move towards an affirmative consent standard in order to challenge mistaken assumptions and myths regarding rape were rejected. Arguments in favor of an approach to sexual violence that de-centered penetration and, thus, challenged traditional understandings of rape received no answer. Footnote 20 Concerns regarding the extent to which the notion of false allegations of rape continues to pervade the public and legal imagination, negatively impacting women involved in the criminal justice system and crashing against offenders’ right to a fair trial and the presumption of innocence. Footnote 21
C. The Emperor Wears No Clothes: The Wolf-Pack Case
This situation of relative placidity abruptly changed in 2016. The Wolf-Pack case offered the perfect example for feminist complaints directed both against a gender-blind law and a gender-biased case law that failed to protect women’s sexual freedom. With an incident-specific focus, a new generation of feminist activists engaged in wider critiques of the societal attitudes that support and perpetuate not only rape, but all the many forms of violence against and oppression of women. Mass nationwide protests showed a profound discontent with the legal regulation of sex crimes in Spain, with media coverage playing a pivotal role in public discourse and the term “wolf pack” becoming shorthand for any alleged multiple perpetrator sexual assault.
What was the spark that lit such a fire? Three aspects galvanized feminists in Spain like never before. Footnote 22 First, allegations by the men’s lawyer, calling the incident “consensual sexual relations among six adults” and suggesting that the plaintiff only denounced the incident out of fear that the men would leak videos of the act. Second, the admission as evidence—by the Provincial Court of Navarre—of reports and investigations into the victim’s sexual history and her behavior after the incident that showed her having fun in the months following the attack and, at the same time, deeming the personal lives and social media activities of the accused as generally irrelevant. This included messages on the Wolf Pack’s WhatsApp chat in which the men explicitly bragged about raping women and talked of purchasing date-rape drugs. And third, the court’s rejection of keeping the five men in pre-trial custody, as requested by the public prosecutor and other private prosecutors in the case, even though they were already suspected of having committed another sex crime in May 2016 in Pozoblanco, only two months before the assault in Pamplona, as images they recorded and sent to their friends demonstrated. The court argued that it granted bail, because the men had no previous criminal records for sex crimes and the social pressure on them made it “practically unthinkable” that they would risk reoffending.
In the first ruling, made public in April 2018, the Provincial Court of Navarre found there to be insufficient evidence of force, threat, or physical coercion. The court said that, according to case law, there can only be violence if physical aggression is used against a victim—an act the court believed did not occur. On the question of intimidation—the key issue of the case—the court ruled that, according to case law, it is “psychological duress, consisting of the threat or the announcement of future and real serious harm if the victim does not agree to participate in a determined sexual act.” The court agreed that the men had “taken advantage” of their superior position to sexually abuse the woman but ruled that this did not constitute intimidation. It said the “victim was not capable of explaining what harm she feared would happen, if she had disagreed to take part.” Acquittal of rape was also based on the argument that the perpetrators could not have realized she did not consent due to her lack of protest or resistance. The victim’s behavior in the video footage was “passive or neutral,” as she kept her eyes closed at all times and remained silent and submissive. She, for her part, told the court that she froze in terror. The court found the men guilty of the “continuous sexual abuse” of the woman, a lesser crime under Spanish law. They each received nine-year prison sentences. One of the judges at the time even argued that the men should have been cleared of all charges, except the theft of her cell phone by one of the men after the assault. In his dissenting opinion, he commented that all he could see in the videos taken by the men was “an atmosphere of revelry and joy.” He claimed the plaintiff exhibited “a total lack of inhibition . . . in a joyous environment.”
The ruling dramatically showed the extent to which gendered assumptions about what is intimidating and how a victim of rape should react still permeated and influenced the operation of criminal court proceedings and their outcomes. Immediately after the five men’s convictions not for rape, but for the lesser crime of sexual abuse, hundreds of thousands of women took to the streets in protest: In a strong wave of support to the victim, shouting, “Sister, I believe you,” and “Don’t worry, sister, we are your wolf pack,” criticizing the misogynic interpretation of the law—“It’s not abuse, it’s rape!”—and demanding a paradigm change in rape laws—“Only yes is yes.” Women’s groups blasted the trial for being a cross-examination of the victim and started Spain’s very own #MeToo movement, sharing their personal experiences of sexual assault and harassment by using the hashtag #Cuéntalo (Tell it) in another powerful display of solidarity with the victim.
The Navarre High Court basically confirmed the first ruling in December 2018. In July 2019, the Supreme Court overturned the lower court’s verdict and found the five men guilty of rape rather than sexual abuse. It increased their sentences from nine to 15 years in prison. The Supreme Court deemed that footage filmed by the attackers on their mobile phones showed a genuinely “intimidating” atmosphere, in which the victim at no time consented to the sexual acts carried out by the accused, but was compelled to submit “to an overwhelming situation of physical and numerical superiority,” after “recognition of the impossibility of opposing the lewd intentions of the aggressors.” Further, it noted that “submission” or “surrender” are examples of non-consent.
Confirmation that the Spanish criminal justice system can put the label of rape on the Wolf-Pack case did not stop protests, which were further fueled by extensive media coverage on other gang assaults and resulting convictions of sexual abuse, not rape. Footnote 23 After years of pushing for a gender-oriented legal reform, feminist lawyers seized on the momentum to finally get it done.
I. “It’s not abuse, it’s rape!”: The Blurry Distinction Between Sexual Abuse and Rape
The Wolf-Pack case revealed gaping holes in the Spanish legal system’s approach to sex crimes. As we have seen, in Spain the pivotal element of the sexual aggression definition, of which rape is an aggravated case, is the use of violence or intimidation. Such a differentiation between sexual abuse and sexual aggression based on the use of violence or intimidation was unanimously applauded at the time of the enactment of the 1995 Penal Code. Footnote 24 It was argued that it duly emphasized the different scale of seriousness according to the impact on the victim’s sexual autonomy, because it is not the same to be forced into submission through violence or threats than non-consensual sex. Nowadays, the distinction is still considered by some as “a sign of civilization and of efficiency.” Footnote 25
Contrarily, during demonstrations against the Wolf-Pack rulings, Spanish law was severely criticized for not legally recognizing a sexual assault as rape unless violence or intimidation is employed, showing that the range of sexual violence that is labelled as rape by Spanish criminal law is too narrow. Even though there is no resistance requirement in Spanish rape law, silence or verbal protests do not qualify as sufficient for a rape conviction. Usually, only physical resistance does. Establishing that sexual intercourse occurred while the complainant is intimidated is a major hurdle for the prosecution, particularly when the victim did not resist or demonstrate her lack of consent. The court agreed that the men had “taken advantage” of their superior position to sexually abuse the woman, but ruled that this did not constitute intimidation, understood, according to case law, as “psychological duress, consisting of the threat or the announcement of future and real serious harm if the victim does not agree to participate in a determined sexual act.” Courts’ restricted definition of intimidation outraged protesters. Moreover, requirements made by the judiciary in the first two rulings of the Wolf-Pack case clearly embodied a male perception of threatening situations and a male way of responding to a threatening situation. Paraphrasing Estrich, Footnote 26 a good victim fights back, she does not submit: “[S]he is a real man.” The fact that many women do not respond with physical force or verbal protests to a threatening situation, but crying or freezing in shock, as the Wolf-Pack’s victim did, was not taken into consideration, even though “involuntary paralysis” or “tonic immobility” has been recognized by experts as a very common physiological and psychological response to sexual assault. Footnote 27 In the Wolf-Pack case, according to the Provincial Court of Pamplona, rape did not occur since the victim had not been forced nor had she resisted. Although two of the three presiding judges in this first ruling conceded that they believed the complainant had not consented to the act, the fact that she had not been violently coerced or intimidated prevented them from qualifying it as rape. This did not mean that the victim went totally unprotected, because the five men were found guilty of sexual abuse, but their penalty was significantly lower.
II. “Only yes is yes”: The Murky Understanding of Consent
In a society where the specter of Franco’s patriarchal, fascist regime lingers, Spanish sex crime law rests on the misogynistic implication that women are passive and submissive sexual partners. As such, their bodies are sexually accessible for women exist in a state of consent. Footnote 28 Therefore, their passivity is equivalent to consent, which is eventually vitiated and invalidated whenever the defendant avails himself of a situation of manifest superiority. In the first two rulings of the Wolf-Pack case, although the complainant was under no legal obligation to expressly signal her non-consent or show physical resistance, the burden of proof meant that she was effectively treated as having consented. The prosecution could not prove otherwise, even though both the Provincial Court and the High Court of Navarre considered her “consent” vitiated by a situation of manifest superiority that deprived her of liberty. This approach made protesters’ blood boil. In July 2018, after the first ruling, the Spanish vice-president Carmen Calvo announced a progressive reform requiring affirmative consent, which would be a major revision in the sexual assault laws in Spain. Footnote 29 The reaction was immediate. She became the very epitome of the ridiculousness of feminism, with both men and women laughing at the idea of a sex contract or a consent app, and the proposal received vitriolic criticisms by right-wing media and parties. Footnote 30 Even if the contract version of the affirmative consent is largely a product of the derisive discourse of reform opponents who seek to make a mockery of the standard, Footnote 31 the concept of requiring a “yes” before sex is nearly unanimously rejected by lawyers and judges, Footnote 32 and continues to engender public disdain. Popular opinion appears to be that requiring a “yes” before intercourse is totally inappropriate and unfair, as well as unrealistic and artificial. Moreover, the Supreme Court’s rejection of the defense of implicit consent in the Wolf-Pack case casts doubts on the need for a legal change. After all, its ruling, applying the existing, unreformed rape law, expressly says that “only yes is yes,” such that the victim’s passive and submissive attitude should not be interpreted as consent.
Certainly, consent is a threshold that can only be invoked with caution. One could say that affirmative consent does not solve all problems. It has been said that it places too high a level of responsibility on the defendant to ensure that the complainant consented. Footnote 33 Even though there needs to be only some evidence of a mistaken belief of consent to prove that the defendant believed that consent had been given, this is thought to be too strict of a standard. From another perspective, it has also been maintained that the influence of external pressures on personal self-determination makes it necessary to scrutinize every “yes,” which should not be taken at face value. Contextual circumstances, such as power disparities, relational dynamics, material inequalities, and socio-sexual norms, may lead to questions of whether the woman was in fact capable of making a choice or not. Footnote 34 The radical wing of the feminist movement even argues that society is set up such that women are constantly oppressed and subordinated and, therefore, incapable of making a true consensual decision to engage in sexual intercourse. Footnote 35 Without going that far, it would be enough to accept that the law’s ability to recognize, let alone problematize, the way in which external conditions construct and constrain women’s agency cannot be taken for granted. The starting point for the law to do so is to initiate a shift from the assumption that women consent if they do not say no, towards a requirement that there be some positive evidence of agreement. In spite of all the adverse criticism, only affirmative consent encourages women to play an equal role in the sexual relationship, giving female wishes equal weight to those of the male participant. At the same time, only affirmative consent encourages men to determine whether sex is actually desired by their partner, making clear that if a woman does not say or do anything to indicate free agreement, it is non-consensual and therefore prohibited sex. Footnote 36
III. “Sister, I believe you”: The Lingering Introduction of the Gender Perspective
During the trial, the five defendants were presented by their lawyers as good sons and friends, with their girlfriends and families displaying a supportive attitude. Unsurprisingly, the same gendered script was applied in understanding the female character and behavior of the victim. The attention given to accounts of false rape allegations by the men’s lawyers placed emphasis on the victim’s contradictory account of the facts and, therefore, her alleged lack of veracity. Furthermore, as shields to limit the extent to which the previous sexual history of victims can be disclosed in court have never been introduced in Spain, defense questioning of the victim focused on the woman’s behavior before, during, and after the incident. Such a defense strategy is accepted and normalized, producing a significant focus on the victim’s behavior. Footnote 37 In the Wolf-Pack case, the act of rape was blamed on the victim, as if in some way she had provoked or tempted the male defendants with her behavior. She voluntarily walked with them, kissed one of them, entered the portal with them. It was she who was placed on trial, having to face long-held myths supporting a gendered understanding of a victim’s behavior and responsibility, as if she were somehow negligent in letting rape happen. Capacity to consent was simply not considered an issue, despite the evidence of her alcoholic intoxication. Footnote 38 Moreover, the ways that the victim found to help herself manage and survive the attack were trivialized and used to attack her credibility. Photos of the victim having fun with friends months after the alleged rape were considered as proof of her lack of suffering from rape-induced trauma, silencing her capacity for autonomy and survival. Footnote 39 Across the protests, a consistent frustration emerged with the prejudiced assessments of the complainant’s credibility that was exhibited by judges and lawyers involved in the case, which failed to live up to the necessary respect of the rights and dignity of the victim. “They don’t believe us until they kill us” was shouted during the demonstrations, strengthening the calls for supporting the victim. Footnote 40
In most Spanish cities, law enforcement agencies have established units specialized in violence against women, including rape. Police officers handling sexual assaults are trained to avoid aggressive questioning and disbelieving attitudes, encouraging victims’ cooperation. Prosecutors and judges should also be trained in identifying the pervasive rape myths, traditional gender role attitudes, and sexism that may bias their legal reasoning and factual understanding. For the moment, this is not the case. Despite progress in public discourse and policy, prosecutorial and judicial training only marginally addresses equality issues, with no gender perspective. Prosecutorial and judicial responses to sexual assault cases remain riddled with problematic assumptions about gender and controversies over what counts as truth. As a consequence, women who are sexually assaulted regularly face prejudice on the part of the authorities who question their testimony. Footnote 41 The widely publicized idea that women often lie and “cry wolf” about sexual assault as an act of revenge, or to hide their own inclination toward practices that some might label deviant, like group sex, affects prosecutors and judges’ management of cases. The common assumption is that sexual assault accusations are frequently baseless and should be treated with extraordinary caution by the criminal justice system. Footnote 42 Mass and social media networks perpetuate this myth. Footnote 43 Such a prevalence reflects centuries-old attitudes portraying women as vengeful liars. Footnote 44 Many people still believe that false allegations of rape are commonplace, confounding unfounded accusations—namely, without enough evidence to prosecute or condemn—with false ones, not taking into account that in many cases in which prosecutors decide not to pursue the case or decide to settle the case, are influenced by gender stereotypes and rape myths. Expectations of victim and offender behaviors often follow a gender-specific path. For example, the appropriateness of women’s behavior, and whether they thereby “merit” to be considered a victim of sexual assault, is a hot topic in the criminal justice system. Judicial concerns with risk management and risk burdens still lead to the judgment and rejection of complainants who are perceived as having engaged in risky behavior. As other gang-rape cases demonstrate, those women who fail to follow the rules of sexual safekeeping—because they chose to drink or get in a car with men or in any way allow themselves to get into a risky situation—are often denied protection. At the same time, the notion that a “real rape” must always involve a violent offender and a physically resistant victim may make some people believe that any other form of sexual assault does not violate the law, because it does not fit in this narrow definition of rape. Footnote 45
D. Towards a More Progressive Law on Sex Crimes in Spain?
Before the Wolf-Pack case, other similar cases of gangs of young males assaulting teenage girls or young women did not make headlines. The Wolf-Pack case clearly induced a dramatic increase in news reporting on the phenomenon, with media coverage playing a pivotal role in public discourse. Through the Wolf-Pack case, a new generation of feminist journalists engaged in wider critiques of the societal attitudes that support and perpetuate not only rape, but all the many forms of violence and oppression of women. Sexual violence as a gender equality issue reappeared on the political agenda, opening the opportunity for legal reform. Lobbying and activism by women’s groups and feminist organizations, in combination with a government which purports to pride itself on its gender-sensitive equality politics, have secured what is, at least, anticipated to be the uptake of a feminist-inspired rape law with a more progressive emphasis on consent. Spain’s left-wing coalition cabinet approved a draft bill on the integral protection of sexual liberty on the eve of March 8, 2020, International Women’s Day.
The “only yes is yes” draft bill—as the press called it Footnote 46 —makes clear that there has to be an “explicit expression of consent” by women if sexual acts are not to be considered crimes, and defines all non-consensual sex as sexual aggression. Rape is a subset of sexual aggression that includes penetration of the body in the absence of consent that violates sexual autonomy. But, as Cowan Footnote 47 has emphasized, “consent is a concept which we can fill with either narrow liberal values, based on the idea of the subject as an individual atomistic rational choice maker, or with feminist values encompassing attention to mutuality, embodiment, relational choice and communication.” One should not be too optimistic about the ways in which consent-based accounts will be interpreted and applied in legal practice.
To begin, the requirement of affirmative consent has already found strong opposition both in the judiciary Footnote 48 and academia. Footnote 49 One could ask if it is necessary. In other countries, moves towards a “yes means yes” model did not promote feminist arguments relating to sexual autonomy and the harmful nature of coerced sex. Footnote 50 It is generally accepted, even among feminists, that reforms introducing affirmative consent have not proven practically successful. Footnote 51 Rape is still widely underreported, and victims continue to be doubly traumatized by a trial. Feminists made gains in terms of specific legal reforms, but such changes were met with great resistance and undermined when put into practice.
Contrarily, abolition of the requirement of violence or intimidation in rape law seems to be relatively easier to accept. Footnote 52 On one hand, it only means a comeback to the traditional, pre-1995 Spanish approach to the crime of rape. Besides that, the present definition of rape does not fall in line with the Istanbul Convention, of which Article 36 defines rape as sex without consent. Therefore, Spain has the obligation to implement a new legal definition of rape based on the lack of consent. But one change is not possible without the other. The abandonment of the violence or intimidation requirement alone is not sufficient to remedy the injustices of present rape law. Only combined may these changes result in increasing the reporting and conviction rates for rape in many cases where the victim is intoxicated or passed out and therefore incapable of consent, as well as in cases of child victims.
On the other hand, attitudes of disbelief and stigmatization towards victims of rape appear to be impervious to methodologically rigorous research, which estimates the number of false reports around 2% or lower in the United States and Commonwealth countries. Footnote 53 Legal change does not help much in this regard, as these national experiences show. Footnote 54 Empirical data and a progressive law reform alone cannot meet the challenges facing feminists seeking a change in both rape myths and judicial attitudes towards legislative reform.
The Wolf-Pack case created a window of opportunity for a more progressive legislation on sex crimes in Spain. Nevertheless, to ensure that the impact of the legal change does not remain at the level of the expressive, symbolic function of the law, it is necessary to change social and cultural norms that significantly affect prosecutorial and judicial practice and its outcomes, such as myths regarding the credibility of victims of sexual assault. Footnote 55 According to its preamble, the draft bill recognizes this by integrating the gender perspective in all sectors related to the prevention, investigation, and prosecution of sexual violence. Shifting away from a legalist perspective centered only on how criminal law defines and penalizes rape and other forms of sexual harm, the draft bill in Spain focuses on the power and role of the law in defining and combatting rape, and also on the question of what other steps can be taken to prevent rape and promote desistance among perpetrators. It includes new comprehensive services available for victims, aimed at preventing trauma and re-victimization, as well as awareness measures for the citizenship at all levels of education and for all professionals involved in the processing of rape in the criminal justice system. It increases coordination between local, regional, and state agencies. It makes sure that involved institutions have protocols and models of best practices in place. Programs for ongoing education will be implemented, and mechanisms for policy development and for auditing the implementation and effectiveness of the various changes will be enacted. One can certainly say that this is a case where criminal justice approaches have not been prioritized over other policies.
E. Conclusions
The Wolf-Pack case represents a transformative moment for feminism in Spain. Dismal statistics tell a tale of a criminal justice system that, even with thoroughgoing revisions to its sex crimes laws, is failing to protect women from serious harms to their sexual autonomy. Footnote 56 While the fallout of the first two rulings in the Wolf-Pack case shows that collective feminist protest can eventually force change, reports of other gang rapes in Spain that have emerged in the past months demonstrate the political urgency of immediate reform, because the case law is marked by inconsistent judicial interpretations that reinforce not only a narrow understanding of sexual consent, but also a narrow understanding of individual responsibility and new forms of victim-blaming. Can the proposed rape law reform be seen as a positive outcome of the feminist-inspired protests?
Law is naturally conservative, Footnote 57 and criminal courts often show a remarkable capacity to adjust to and effectively thwart well-intentioned reforms that fail to live up to their promise in terms of respecting the rights and dignity of rape victims. Footnote 58 Therefore, it would be naive to simply trust in a legal reform. Other national experiences show that changing the law does not necessarily change the beliefs and behavior of victims, police, prosecutors, judges, and citizens, which may limit the effectiveness of progressive reform measures. The rhetoric of change may be proudly upheld while underlying structures and realities remain largely intact, demonstrating what has been identified as “the paradoxical way in which feminist knowledge both informs reform processes and is simultaneously disavowed.” Footnote 59 Rape-law reform is not enough. Only by understanding the power and influence of the legal and judicial gendering strategies can we achieve a greater critical awareness of how, and under what circumstances, a gender-informed legal policy and practice development can challenge problematic stereotypes surrounding rape law. This approach must be combined with preventive measures linked to raising awareness and education to achieve positive and significant effects on women’s protection against sexual violence. This is exactly the path taken by the draft bill, assuming that real changes need a long-term, broader perspective.
Nourse Footnote 60 suggests that writing about feminist reform of criminal law is to write of simultaneous success and failure. We still do not know which one will prevail in relation to the intended reform. In any case, in the future, when legal scholars and sociologists will write about the history of sex crimes in Spain, they certainly will have to include the Wolf-Pack case in their narrative.
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