In the drama
Youngok: Then we have reached an agreement. Just drinking and doing nothing.
Jung Joon: Yes.
Youngok: What about after drinking?
Jeongjun: Because our love is all, all, all drunk.
Youngok: Waking up in the morning and not remembering what I did the day before, what the captain said to me, or anything like that, total terrorism.
Jung Joon: That’s right. Today, cleanly, just drinking.
By ‘anything’ here, of course, I mean sexual intercourse. Young-ok wants to be smart when having sex with the one he loves. Jeongyeon agrees. I applaud this couple on the inside for their commitment to having sex with their full will, rather than relying on her drunkenness. This is ‘Sweet Love’.
Imagine how this romantic scene plays out differently. Young-ok is so drunk that she doesn’t even know what she’s doing or what Jeong-jun is talking about, and she only wakes up in the morning to realize that the night before she had sex with Jeong-jun. It happened while two people who are dating went on a trip and spent the night together, and some may wonder what the problem is. However, if the background is Spain and not Korea, the story is completely different. If there is no explicit consent to sex, or if it is difficult to judge properly because of intoxication at the time of consent, it can be rape. This is because of the so-called ‘only yes is yes’ bill passed by the Spanish Parliament on August 26.
The official name of this bill is the ‘Comprehensive Protection Act on Sexual Freedom’. Sexual freedom means freedom to have sex with anyone you want, whenever you want. It is also known as the “Sexual Freedom Act” for short. At the heart of this law is ‘consent’ to sexual intercourse. Asking for consent itself is not new. Prior to the Sexual Freedom Act, Spanish criminal law prohibited sexual intercourse without consent. The problem is that consent is not precisely defined. As the interpretation of consent was left to the discretion of the judge, nonsensical rulings such as ‘agreed because the woman did not close her legs’ or ‘agreed because she did not scream and resist’ often came out.
There are two types of sexual offenses in Spain. One is ‘abuso sexual’ and the other is ‘agresión sexual’. The difference between the two is the presence or absence of violence and coercion. Having sexual intercourse without consent and using physical violence was considered sexual assault (rape), and if there was no violence, it was considered sexual abuse. Of course, the punishment for sexual assault is heavier. Among them, in the case of sexual abuse where violence was not used, the consent of the victim was frequently raised during the trial process. The argument that the assailant did not resist sexual intercourse even though he did not hit him is the argument that he actually consented. Rebuttals have been constantly raised saying that ‘rape does not necessarily require violence, and sex can be coerced by using socioeconomic status or other circumstantial conditions without hitting.’ And here comes the case of pouring oil.
On July 7, 2016, five men gang-raped an 18-year-old woman in Pamplona, the capital of the province of Navarre in northeastern Spain. It was the famous cattle herding festival in Spain. The woman entered her apartment building after being caught by her men as she walked into her own car late at night. In a room measuring about 3 square meters with only one exit, a woman was raped by men a total of six times. Males are between 24 and 27 years old. One of them was a professional soldier and the other was a local police officer. Three out of five had criminal convictions. Immediately after the incident, passersby found a woman left alone in the hallway of the apartment and reported it to the police. The men were arrested at the festival site around noon the next day. As a result of the police investigation, they filmed a woman being raped and shared seven of the videos with their WhatsApp messenger group. Since the group’s name is ‘La Manada’ (Spanish for ‘animal herd’), this incident is called ‘La Manada Incident’.
“Only Yes Only Yes”
On April 26, 2018, the Navarre District Court sentenced them to nine years in prison on charges of ‘continuous sexual abuse’. Why is it sexual abuse and not sexual violence, which has a higher sentence (12-15 years)? The court argued that ‘the victim did not resist’. Filmed footage showed the woman kept her eyes closed, didn’t say anything, and maintained her passive attitude while she was gang-raped by five men 6 to 9 years older than her. One out of three judges who made the ruling even claimed the innocence of five men, saying that not resisting meant consenting to sex. During the trial, materials submitted by a private detective hired by the perpetrators were also submitted. It was used as evidence that a woman was not sexually assaulted by saying that she had ‘ordinary communication’ on social media after being raped. The perpetrators, who were freed from allegations of rape, were released on June 22 of the same year on 6,000 euros bail.
However, the Spanish Supreme Court decided otherwise. The Supreme Court upgrades the men’s charges from sexual abuse to sexual assault. The reason is that ‘the victim has been threatened and is gripped by fear and cannot resist’. In July 2019, the Supreme Court said in its ruling that “the judgment of the lower courts is an error” and that “consensual sexual relations can only be said to be consensual if it can be inferred that consent was clearly given based on explicit consent or circumstances.” The court sentenced the perpetrators to 15 years in prison each. One of them (a former police officer) was sentenced to two more years in prison for stealing the victim’s cell phone. The court also ordered them to be banned from going within 500 meters of the victim for the next 20 years and to pay 100,000 euros in compensation.
Although charges and rulings have been changed by the Supreme Court, the La Manada case and its trial process have provoked outrage among women across Spain. Thousands of people poured out to the streets, demanding the revision of the current law that simply divides sexual crimes into sexual abuse and sexual assault based on violence and resistance. There are three main slogans that appeared at the rally. “Sister, I believe in you,” “It’s not sexual abuse, it’s rape,” and “Only Yes is Yes.” And the last slogan is used as an alias for the newly enacted Sexual Freedom Act, influenced by this case.
Let’s see how “consent” is defined in the Sexual Freedom Act, which was passed by the Spanish Parliament on August 25, 2022 with 205 votes in favor, 141 against, and 3 abstentions. “Consent shall be deemed to have occurred only when (1) taking into account the circumstances of the case, the parties’ opinions were (2) clear and (3) freely expressed.” Only a clear ‘yes’ is consent, and silence, non-resistance, and hesitation in other cases are not consent. Now, the judge’s discretion, such as ‘agreed because you did not close your legs’, has lost its place. The bill also eliminated the category of sexual abuse and unified all sexual offenses into sexual assault. In the case of unwanted sexual intercourse in a state where clear expression of intention is impossible due to alcohol, drugs, or drugs, in the past, it was punished as sexual abuse, but in the future, sexual assault is applied, and drug use itself becomes a reason for aggravated punishment.
Few countries in Europe have such strict punishments for sexual intercourse without consent. Except for Spain, only Sweden. Because it is a radical change, there is a lot of backlash. Carla Toscano, a female politician from the Spanish far-right party Vox, said: “The purpose of this law is not to protect women, but to destroy men, especially straight white men. The idea of unprovable consent has the sole purpose of destroying white men.” This is a statement that ignores the fact that experts have revised and supplemented the definition several times so that there is no confusion in the term ‘consent’ during the 11-month legislative process. Opponents argue that the presumption of innocence principle is broken and that the burden of proof rests with the accused. However, the principle of presumption of innocence stipulated in the Constitution still remains, and the accused has no responsibility to prove his/her consent. The facts will be overshadowed during the trial. What has changed is that everyone is rethinking what it means to consent to sex.
After 11 months of legislative process
One of the most frequently asked questions about consent is whether consent is required for sexual intercourse in a romantic or marital relationship? Yes. Let’s take a real case as an example. A man from Malaga, Spain, came to her house and demanded sex from her wife. Although her wife refused, she said, “This is your duty,” and grabbed her wife by the head, forcing her to have oral and anal sex. The couple, who have been together for 25 years, have already had many problems in their marriage. Men insulted her wife, often calling her “pigs”, “bad mothers” and “useless”. In 2019, the Supreme Court sentenced the man to nine years in prison for sexual assault and nine months for abuse. “There is no such thing as the right to be offered sexual acts. Marriage or romantic relationships do not confer any powers beyond the other’s sexual freedom. Forced sex with a partner is rape. To deny rape between couples is to assert that marriage is the graveyard of sexual freedom for both parties.”
Another question, can I withdraw consent? Yes. In April 2019, the Salamanca District Court in Spain ordered a man who removed a condom without consent during sex to be fined 2160 euros for sexual abuse and to pay 900 euros in compensation. Consent to sexual intercourse established on the precondition of the use of a condom is void if this condition is changed. Transparent information provision is a prerequisite for consent. If this case is brought to trial again now, the man could be charged with sexual assault, not sexual abuse, and the sentence could be heavier.
The crime itself was shocking in the recent Shindang Station stalking and murder case, but the remarks by Seoul City Council member Lee Sang-hoon in defense of the perpetrators were also terrible, saying, “It seems that a male employee has taken various violent actions because he likes it but does not accept it.” It’s no wonder you haven’t seriously considered consent as the starting point of a relationship. Looking back, how mature are Young-ok and Jeong-joon, who are willing to have sex with the consent of their smart minds. Well, they get drunk during the conversation and the above episode ends with a happy ending called ‘Yes is Yes’.
© EPN