Only Yes Means Yes: A New Consent Law in Spain Makes any Sexual Act Done without Clear Consent Prosecutable as Rape

By Haley Wehner

I.           Introduction

In 2016, an 18-year-old girl traveled to Spain to attend the infamous running of the bull festival.[1] The nine-day festival highlights Spanish culture and brings in over one million people.[2]  However, for this 18-year-old girl, what started as a fun experience, ended in horror when she was gang raped in a hotel lobby by five men.[3]  The tragic details show that one morning, on her way to the festival, five men led the woman into the hotel lobby.[4]  The group of men horrifically took advantage of the girl and took turns having sexual intercourse with her.[5] As if the story could not get any worse, throughout the incident, the men recorded the sex acts on their phones to share later.[6] That evening, the men shared the recording with each other via WhatsApp, where they laughed and joked about the incident.[7] The media refers to the group of men as the “Wolf Pack,” which is also the name of their WhatsApp group where they discussed their plans to rape women at the festival.[8]

II.         The History of Sexual Violence at the Festival

The running of the bull festival has a history of grotesque sexual violence towards women.[9] For example, the same year that the “Wolf Pack” horrifically assaulted a young girl, a 27-year-old doctor, José Diego Yllanes, coerced a 20-year-old woman up to his apartment.[10] When the woman refused to have sexual intercourse with the doctor, he responded by tearing off her clothes and then viciously attacking her, killing her in the process.[11] Throughout the murder trial, the media consistently put the emphasis on whether the woman involved was a “flirt” rather than focusing on the behavior of the murder.[12] Similarly in the “Wolf Pack” case, the defense lawyers hired a private detective to analyze the behavior of the victim after the alleged crime, including on social media.[13] The Spanish people specifically condemned this act as “another attempt to lay the blame for the assault at the feet of the victim.”[14]

III.       The “Wolf Pack” Defendant’s Face Charges for their Crimes

In a landmark case, the five men implicated in the “Wolf Pack” incident went before a lower court in Spain, where the court had to decide whether the men were guilty of “sexual abuse” or of the more serious charge, rape.[15] At the time of the trial, for a defendant to be charged with the more severe crime of rape, there had to be an element of violence or intimidation.[16] If the courts could not find evidence of violence or intimidation, the offense would be classified as the less severe offense of sexual abuse.[17]

The lower court held that the men were not guilty of rape, but were guilty of “continuous sexual abuse” and were charged with only nine years in prison, along with a fine.[18] At trial, the men argued that the woman was not gang raped but had consented to unprotected sex.[19] They relied on scenes in the video footage showing the woman remained very still throughout the attack and kept her eyes shut during the entire assault.[20] The defense attorney argued that the victim “simply has to say ‘no’” and because that did not occur, the men could not be charged with rape.[21] The court found in light of the evidence that “there was no violence nor intimidation toward the victim” and that “consent was obtained given the situation”[22] The ruling prompted an immediate outrage all across Spain — thousands of Spaniards flocked to the streets in protest.[23]

Various protests broke out across Spain after a lower court ruled that the “Wolf Pack” was not guilty of rape. Courtesy Wikimedia Commons.

The case was appealed to the Spanish Supreme Court where fortunately, the Court ruled that the defendants were guilty of the more severe crime of rape rather than sexual abuse.[24] The Supreme Court stated in pertinent part that “the factual account describes an intimidating scenario, in which the victim in no way consents to the sexual acts carried out by the accused.”[25] While this victim found success in the Spanish courts, the story continued on to the Cortes Generales, the Spanish Legislature.[26] 

IV.       Spain’s New ‘Only Yes Means Yes’ Law

The case sparked an outcry across Spain.[27] Prime Minister Pedro Sánchez put it best when he said, “If what the wolf pack did as a group wasn’t violence against a defenseless woman, what do we then understand to be rape?”[28] The outcry inspired the Spanish Legislature to pass a law redefining what is required for a defendant to be charged with rape.[29]  Under the new law, which passed in August 2022, any sex that takes place without clear consent from the accuser can now be prosecuted as rape.[30] The law does not require that a victim verbally use the word “yes” to express consent.[31] However, the law specifies that “there is consent when it has been freely expressed through acts that, in view of the circumstances of the case, clearly express the will of the person.”[32] It is unclear how the courts will interpret the statute, specifically what  type of circumstances create clear consent from a person.[33] Regardless, legal experts and feminist scholars have hailed the measure as “a big step forward.”[34]

This new consent law signals the first major overhaul of Spanish sexual assault legislation since 2015 when Spain raised the age of consent from 13 to 16.[35]  The law can be seen as a victory for not only women, but all victims of rape or sexual assault.[36] The law shows a dedication to protecting Spaniards from sexual violence, which other nations have not recognized across the globe.[37] As of August 2022, only 12 European countries – Belgium, Croatia, Cyprus, Denmark, Germany, Greece, Iceland, Ireland, Luxembourg, Malta, Sweden and the United Kingdom — define rape as sex without consent.[38]

[1] Five Men Cleared of Gang Rape at Spain’s Bull-Running Festival, ABC NEWS (April 26, 2017), https://www.abc.net.au/news/2018-04-27/five-men-cleared-of-gang-rape-in-spain/9702290.

[2] Id.

[3] See generally id.

[4] Reyes Rincon, Supreme Court Raises Convictions in “Wolf-Pack” Sexual Assault Case to 15 Years, EL PAIS (June 21, 2019), https://english.elpais.com/elpais/2019/06/21/inenglish/1561121776_247444.html.

[5] Id.

[6] Id.

[7] Five Men Cleared of Gang Rape at Spain’s Bull-Running Festival, supra note 1.

[8] Vanessa Romo, Spain’s Supreme Court Reverses Earlier Decision, Convicts ‘Wolf Pack’ of Rape, NPR (June 21, 2019), https://www.npr.org/2019/06/21/734843639/spains-supreme-court-reverses-earlier-decision-convicts-wolf-pack-of-rape. 

[9] Manuel Jabois, Pamplona Rape Trial Reveals Changing Attitudes to Sexual Violence in Spain, EL PAIS (Nov. 23, 2017), https://english.elpais.com/elpais/2017/11/22/inenglish/1511353230_793591.html. 

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Raphael Minder, Spanish Court Sentences Pamplona ‘Wolf Pack’ to 15 Years for Rape, N.Y. TIMES (June 21, 2019), https://www.nytimes.com/2019/06/21/world/europe/spain-wolf-pack-pamplona-rape.html.  

[16] María Sosa Troya and Isabel Valdés, Spanish Cabinet Takes First Step Toward Major Overhaul of Sexual Assault Laws, El PAIS (Mar. 3, 2020), https://english.elpais.com/society/2020-03-03/spanish-cabinet-takes-first-step-toward-major-overhaul-of-sexual-assault-laws.html. 

[17] Id.

[18] Minder, supra note 15.  

[19] Raphael Minder, Verdict in Pamplona Gang Rape Case Sets Off Immediate Outcry, N.Y. TIMES (April 26, 2018), https://www.nytimes.com/2018/04/26/world/europe/spain-pamplona-gang-rape-verdict.html. 

[20] Id.

[21] Emma Bubola and José Bautista, Spain Passes Law Requiring ‘Freely Expressed’ Consent for Sex, N.Y. TIMES (Aug. 25, 2022), https://www.nytimes.com/2022/08/25/world/europe/spain-rape-consent-law.html. 

[22] Susana Urra and Simon Hunter, “Running of the Bulls” Defendants Escape Rape Convictions, EL PAIS (April 26, 2018), https://english.elpais.com/elpais/2018/04/26/inenglish/1524730809_875632.html. Violence and intimidation were required in order to prove rape under the Spanish Criminal Code. Andrew Jeong, Under Spain’s New Sexual Consent Law, Only Yes is Yes, WASH. POST (Aug. 26, 2022), https://www.washingtonpost.com/world/2022/08/26/spain-only-yes-law-sexual-consent/.

[23] Jeong, supra note 22.

[24] Rincon, supra note 4.

[25] Romo, supra note 8.

[26] See generally Jeong, supra note 22.

[27] Emma Bubola and José Bautista, Spain Passes Law Requiring ‘Freely Expressed’ Consent for Sex, N.Y. TIMES (Aug. 25, 2022), https://www.nytimes.com/2022/08/25/world/europe/spain-rape-consent-law.html. 

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Stephen Burgen, Spain Passes ‘Only Yes Means Yes’ Sexual Consent Law, GUARDIAN (Aug. 25, 2022), https://www.theguardian.com/world/2022/aug/25/spain-only-yes-means-yes-sexual-consent-bill-expected-to-become-law. 

[36] Chas Newkey-Burden, ‘Only Yes Means Yes’: Spain’s New Sexual Consent Law, THE WEEK (Aug. 26, 2022), https://www.theweek.co.uk/spain/957764/only-yes-means-yes-spain-new-sexual-consent-law. 

[37] See generally id. (stating that consent legislation is relatively recent).

[38] Id.