Submitted by metroracerUK t3_118uzgx in nottheonion
Phorensick t1_j9jc6vq wrote
Reply to comment by VyrPlan in Spanish transport secretary resigns after new trains too big for tunnels by metroracerUK
Agreed it has zero to do with trains…it’s about more clicks to link other Guardian stories.
But since I was confused as well…here’s the quick summary of what they referenced:
The left and the right are bashing each other because the government passed a well meaning law that had some very unintended consequences…
“Under the new law, consent must be given and cannot be assumed to have been given either by default or with silence. The legislation also removes the distinction between sexual abuse and sexual assault – i.e. rape – by making consent the deciding factor.
[and this is the part that wasn’t completely thought through…]
The new legislation has allowed convicted sex offenders to have their sentences reexamined. On Wednesday alone, Spanish media reported that 13 sentences had been reduced in several different regions, and that three convicted sex abusers had actually been released as a result. One of the cases involved a man in León who had abused his 11-year-old daughter. Judges ruled that instead of ‘sexual abuse of minors’ he had in fact committed ‘sexual assault of minors’, which carries a six- to 12-year sentence compared to the original eight to 12.
Under Spanish law, any change to the minimum sentence for an offence can be applied retroactively, and judges usually rule in favour of the convict in such cases. That means that where the minimum sentence for a sexual offence has been reduced, a person serving time for the same offense can expect to spend fewer years in prison or even be released on time served.”
bbkknn t1_j9jh4n8 wrote
I'm sorry but that explanation is factually wrong but sadly this is what is being pushed by spanish politicians and media alike so it's no wonder foreign press got it wrong too.
Consent always has been an important point when judging sex crimes and the scandal of the Pamplona gang rape which sparked the new law had nothing to do with consent (the victim not consenting was never in doubt, otherwise there would be no crime) but with the aggravating factors. Both the initial court and the appeal court decided that the actions didn't qualify for agresion but for the less severe felony of abuse. Note that both abuse and agresion can qualify as rape or not and it was just a choice by the lawmaker to explicitly not use the word "rape" except in one instance.
Feminist groups got upset either by ignorance or by populistic takes on the matter and the slogan "it's no abuse, it's rape" became popular. But aggresion wasn't equal to rape but rape was an aggravating circumstance for both sexual aggresion and sexual abuse. The solution in the new law was to eliminate the "sexual abuse" and combine both abuse and aggresion into one felony. But by doing so they also combined minimum and maximum sentencing from the old crimes into the new one.
The spanish criminal code establishes that any new law that is more favourable to the offender has to be applied retroactively. The problem isn't per se that the minimum sentences have been reduced but that, by doing so, if the same crime was judged according to the new law and keeping all other circumstances the same a lower sentece would have been handed.
carabolic t1_j9lpjza wrote
Thank you. That makes a lot of sense. But why is it assumed that the criminal would have received the minimum sentence?
bbkknn t1_j9lvizu wrote
I'm not sure I understand the question correctly. It's not assumed that the criminal would have received the minimun sentence. Actually most cases of reduction I have heard of were in the upper range. 10 to 12 years that get lowered 2 or 3 years.
The court compares the original conviction with how they would convict with the new law, all facts remaining the same. If this results in a lower sentence then they have to reduce it.
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