The law of only yes is yes, promoted following the social protest that generated the case of La Manada de Sanfermines and the criminal typification of the crime, has ended up allowing the sentence of one of those convicted for that gang rape to be reduced. The Superior Court of Justice of Navarra (TSJN) has reduced by one year – from 15 to 14 years – the prison sentence that the Supreme Court imposed on Ángel Boza, one of the five convicted. Two of the three magistrates in the room interpret that the aforementioned rule, law 10/2022, on the Comprehensive Guarantee of Sexual Freedom, is “more favorable” to the convict, so that the sentence must be reduced. The resolution has a dissenting private vote.
The sentence, which can be appealed to the Supreme Court, comes after, at the end of 2022, Boza’s lawyer requested a reduction in the sentence, after the law of only yes is yes came into force. The victim’s lawyer, Teresa Hermida, points out that the young woman has received the news with “a lot of sadness” and has expressed her intention to appeal the decision.
The sentence was handed down by magistrates Joaquín Galve Sauras, president of the TSJN, and Francisco Javier FernándezUrzainqui. Basically, they point out that the changes to the penalties for the crimes of sexual assault contained in the law, which merge the crimes of abuse and assault, benefit the convicted, since the minimum sentences have been modified.
The argument of these magistrates is that the sentence must be reduced because the Supreme Court, which in 2019 stiffened the sentences handed down in the first instance against the defendants, pointed out in its sentence that it imposed a sentence of 15 years, “ close” or “close” to the legal minimum, minimums that the new law has lowered.
On the opposite plan, magistrate Esther Erice has pointed out through her private vote that the penalty “cannot be determined based on simple criteria of arithmetical proportionality”, and that “the seriousness of the facts” must be taken into account and “the proximity of the 15-year sentence to the new minimum possible”.
The resolution is paradigmatic of the problems raised by the law of only yes is yes and the margin it leaves for interpretation. The rule arose, precisely, as a response to the social outcry that generated the ruling in the first instance of the La Manada case, after the Provincial Court of Navarra convicted the five members in 2018 for abuse and not for sexual assault. Although the Supreme Court modified the penalties, it was wanted to prevent similar situations from repeating themselves.
The rule sought to put consent at the center and, at the same time, merged the crimes of abuse and aggression to avoid interpretations like that of the sentence in the first instance. The problem is that since the crimes were merged, some minimum sentences were also reduced and, in addition, a transitional provision was not included that would limit the cases of possible review of convictions.
The amendment of the law last spring could only partially solve the problem, since the changes only apply to crimes committed since the approval of the legal reform.
