To what extent does the "Only Yes is Yes" law disadvantage the accused?

As we explained in a previous blog post on Spanish sexual criminal law, the “Only Yes Means Yes” law in Spain requires that the other partner give clear consent to sexual intercourse. Otherwise, one faces criminal proceedings and even a conviction for rape in Spain.

A clear or even implied “refusal” is not required.

The “Only Yes Means Yes” rule in Spanish sexual criminal law operates in a constitutional gray area. While the law does not formally establish a reversal of the burden of proof, the strong emphasis on explicit consent carries the risk that the absence of proof of consent may be implicitly interpreted as incriminating evidence, thereby constituting a reversal of the burden of proof. As a result, this may lead to doubts no longer being consistently resolved in favor of the defendant.

In practice, Spanish investigative authorities no longer have to prove the guilt of the accused or defendant; rather, the alleged sex offender must prove his innocence.

Whether this constitutes a violation of Art. 24(2) of the Spanish Constitution has not yet been conclusively clarified. The Constitutional Court has not yet declared the reform itself unconstitutional, but has emphasized in individual cases that the assessment of evidence must strictly comply with the minimum constitutional requirements.

We at “NOBIS – Lawyers + Abogados for Criminal Law” have a clear position on this: We believe the current regulation is unconstitutional!