One of the reproaches heard from the EU institutions against Poland and Hungary, as far as the famous “rule of law” issues are concerned — and in particular, the independence of the judiciary — is that the two conservative countries’ executive powers allegedly try to intimidate judges with harsh criticism made in the media.
If criticizing judges and their rulings is indeed an act of intimidation, why are the same EU institutions not switching their focus to Spain’s ruling coalition of the Socialists and the far left after members of that coalition have called judges “male chauvinists” and “fascists” just because they did not like their rulings?
Even the country’s judicial council, the General Council of the Judiciary Power (CGPJ), has expressed “its strongest condemnation of the intolerable attacks made (…) against members of the judiciary by some political leaders” for applying the so-called “only yes means yes” law.
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Spain’s “only yes means yes” law on sexual consent was adopted last August. The law, which is officially named the “Organic Law on the Comprehensive Guarantee of Sexual Freedom,” stipulates that “consent shall only be understood to exist when it has been freely manifested, through acts that, in view of the circumstances of the case, clearly express the will of the person.”
According to the far-left Podemos’ Equality Minister Irene Montero, who is the new law’s author, the law “is finally enshrining in law that consent must be the central element of our sexual relationships” so that “women will no longer have to show that there was violence or intimidation in order for it to be recognized as sexual aggression.”
In a tweet published just after the bill was enacted into law, the equality minister thanked “the feminist parliamentary majority that made it possible.”
The law takes a turn for the worse
Despite her victory lap, on Nov. 25 in Madrid, a feminists’ protest saw thousands of people gather to demand Montero’s resignation. The Spanish conservative news website La Gaceta wrote: “In addition to the cries heard from part of the organizing associations calling for her resignation, the Alliance against the Erasure of Women, an entity in which some socialist personalities are active members, deployed a banner on which you could read “Irene Montero, resign. Enough misogynist and botched laws!’”
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The sharp turn of some feminists against Montero has to do with reforms of the penal code enacted in August, with Montero’s new law also lowering the minimum sentence for sexual offenders. Since there is a general principle regarding Spanish penal issues in which new laws apply retroactively whenever this benefits a convicted offender, some judges have lowered past sentences while others have begun to hand down verdicts with lower sentences in new cases related to sexual assaults and rapes.
On Dec. 1, the center-right daily newspaper El Mundo thus wrote: “At least 43 sex offenders have already benefited from the ‘yes means yes’ law. All of them have had their sentences reduced by one to seven years.” In another piece, the newspaper gave a list of 13 men convicted of rape, including of children, who had been set free because of Montero’s law.
The early release of rapists is not the only concern raised by the law that was supposed to better protect women. Already in early 2021, when it was still a draft law discussed within Sánchez’s government, Spain’s judicial council criticized the definition of sexual consent it planned to introduce by stating that “consent shall be deemed not to exist when the victim has not freely manifested by external, conclusive and unequivocal acts in accordance with the circumstances his or her express will to participate in the act.” Such a definition is seen by many law experts as putting into question the principle of presumption of innocence.
On Dec. 2, the conservative Vox party announced it had put Montero’s law to the country’s constitutional court. It took his action because of the left-wing majority’s refusal to amend it at the center-right Popular Party’s (PP) request; the party also said the law should be repealed “because it frees rapists leaving women more unprotected than ever, it violates the presumption of innocence of men, and indoctrinates our children.”
Instead of just amending the law, Vox had filed a bill in parliament to repeal it altogether.
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In mid-November, PP leader Alberto Núñez Feijóo said: “We are living, in Spain, the dramatic consequences of a populist decision, taken against the PP, the judges, and common sense. The entry into force of the ‘only yes means yes’ law has provoked a constant trickle of prisoners jailed for sexual crimes who have had their sentences reduced or have been released.”
However, for Equality Minister Irene Montero, the reason why sexual convicts are being released early is due to the judges who apply her sexual freedom law erroneously because of their “machismo,” and the only solution in her eyes would be to send them to gender-sensitivity training courses so they know better how to enforce the law. She also repeatedly stresses that the law was prepared “hand in hand” with the Ministry of Justice and two other ministries and that it was a government bill.
During the G20 summit in Bali in mid-November, Spain’s Prime Minister Pedro Sánchez defended the law despite the increase in sexual convicts walking the streets of Spain, saying that “it is a great achievement of the feminist movement” and “a vanguard law that will inspire other laws in the world.”
“There are judges who are breaking the law,” said Minister Montero on the following day in Madrid. “The United Nations alerts us that machismo can cause judges to apply a law in a defective way,” she added.
Top leaders in her far-left party Podemos have stood by Montero and attacked judges for applying the law to release rape convicts early. Javier Sánchez Serna, who holds the position of third secretary in the Congress of Deputies and is Podemos’ regional coordinator for the region of Murcia, has called to “not slacken” before “fascists in robes that want to blow up any feminist legislation.”
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Intervening in the Congress of Deputies in mid-November, Secretary of State for Equality Ángela Rodríguez and Government Delegate for Gender Violence Victoria Rosell claimed that judges “are breaking the law” and making an interpretation of the reform of the penal code “with gender bias.” Like Montero, they want “there to be mandatory training for judges” on machismo.
“Where is the training of judges? It is a disgrace. Get yourselves trained, judges!” said Rodríguez who went on to tell deputies that she never thought one law would be enough to get rid of Spain’s “patriarchal judiciary.”
Despite Spanish politicians outright attacking judges, this behavior has drawn little scrutiny from the EU, raising the question of how Brussels treats various governments as long as they are friendly with the left-liberal establishment. The treatment of Spanish judges reveals that the EU may be less concerned about preserving democracy and the rule of law, and more focused on which government professes an ideology aligned with the ruling class in Brussels.
This latest controversy is confirming that Spain’s left can trample on democracy as long as it is governed by pro-EU progressives.
