How does Spanish sexual criminal law differ from German sexual criminal law?

In many respects, the German sexual criminal law and the Spanish sexual criminal law are very similar. However, there are also very crucial points in which both systems differ.

We want to address an important difference here:

A decisive difference between German sexual criminal law and Spanish sexual criminal law is that in Spanish sexual criminal law, it is not the missing "no" (no is no) or any other representation of the dissatisfaction of the respective situation that is decisive for a consensual sexual act, but both parties must clearly express that they want this physical closeness (the so-called "only yes is yes" law)

This amendment to the law in the Spanish sexual criminal law was adopted in 2022 and has led to controversial discussions under the item "Only yes means yes" law?

To what extent does the "only yes means yes law" disadvantage the accused?

We at Nobis – Rechtsanwälte + Abogados für Strafrecht are critical of this new legislation in Spain on sexual criminal law.

In German as well as Spanish criminal law, the presumption of innocence applies ("In doubt for the accused" / "in dubio pro reo"). With the "Only yes means yes" law, we see this important principle of the rule of law broken, because from our point of view a reversal of the burden of proof is associated with this new law in Spanish sexual criminal law in practice.

Although the principle of "only yes means yes" is intended to promote clarity and transparency, misunderstandings or different interpretations of consent can lead to criminal uncertainties and false judgements, especially in cases where communication is unclear or unambiguous.

Despite the criticism of this law, the Spanish legislator adheres to the "only yes means yes" principle.

This law is seen by legislators as an important step towards strengthening the rights of victims in Spanish sexual criminal law and is intended to help promote a culture of consensual and respect.