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Tags: manada | pamplona | rape | spain
OPINION

Strengthening 'Affirmative Consent' Puts Criminals On Notice

no language games
 (Michael Foley/Dreamstime.com)

Susan Estrich By Monday, 29 August 2022 02:00 PM EDT Current | Bio | Archive

It was during the bull-running festival in Pamplona in 2016 that five men --- calling themselves a "manada," or wolf pack  gang-raped an 18-year-old girl. They taped it on a cellphone, where the woman appeared still and with her eyes shut.

The Spanish court initially refused to convict for rape, because of the absence of evidence of violence or coercion, what American law has required as "force or threat of force."

Last week, the outrage over that decision helped lead to a new national law in Spain that requires consent to be freely expressed, and where it's not, that's rape.

According to the law, "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."

When I first started working in the rape reform movement, the challenge was to convince prosecutors, judges and jurors that "no meant no."

Literally.

The law for a time imposed a requirement that rape victims, unlike victims of any other crime, must resist to the utmost to prove their non-consent; and while that requirement was ultimately jettisoned as the sexist relic that it was, the problem of proving who said what to whom remains.

The move to require affirmative consent, expressed verbally or through conduct, has gained traction here and in Europe. Under affirmative consent statutes, a person who is too incapacitated to give consent cannot be held to have consented.

That's an important step forward. And the presence or absence of consent is to be judged from the perspective of the woman.

That's important as well.

But problems of proof remain in most cases.

The Spanish rapists made things easy by taping the attack.

Most men aren't that stupid.

As a general rule, when consent matters in the law, for instance when you're selling a piece of property, we require that it be in writing. A simple solution to the danger of fraud.

But somehow, doing that with sex earns you laughs: I used to tell audiences that they should make condom packages with space for two sets of initials, which would solve a host of problems.

How unromantic, I was told. Of course, there is nothing more unromantic than rape.

There is some irony in the fact that we live in a world where young people document every moment of their existence  except the ones that matter most.

Why not?

The new law in Spain does something else reformers like me have been arguing for, which may be equally important. It sets different levels of the offense, from fines to 15 years in prison, and spells out aggravating factors, with harsher sentences for gang rapes and rapes of incapacitated women, and no breaks for boyfriends or family members.

A jury is more likely to convict when they can tailor the conviction to the facts of the case so that the punishment more closely fits the crime.

Th five men who were involved in the gang rape captured on tape were ultimately sentenced to 15 years in prison for rape by the Supreme Court of Spain.

The woman victim, who has remained anonymous, told the press, "It is not my law, but a law for all the women," which it surely is.

Don't say no; say rape. The word has power, all the more so when there is an affirmative consent standard.

Whether a law like the one Spain passed leads to more convictions remains to be seen.

The goal, in the end, is not to lock men up but to change behavior.

The fact that the Spaniards had the audacity to capture their assault on one of their own cellphones makes clear why the law needs to change. They thought they had a right to do what they did. They were wrong, and the law needs to clearly say that.

Susan Estrich is a politician, professor, lawyer and writer. Whether on the pages of newspapers such as The New York Times, the Los Angeles Times and The Washington Post or as a television commentator on countless news programs on CNN, Fox News, NBC, ABC, CBS and NBC, she has tackled legal matters, women's concerns, national politics and social issues. Read Susan Estrich's Reports — More Here.

© Creators Syndicate Inc.


Estrich
The move to require affirmative consent, expressed verbally or through conduct, has gained traction here and in Europe. Under affirmative consent statutes, a person who is too incapacitated to give consent cannot be held to have consented. That's an important step.
manada, pamplona, rape, spain
709
2022-00-29
Monday, 29 August 2022 02:00 PM
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