How consent laws differ in Spain and the UK
While both Spain and the UK are committed to protecting individuals from sexual assault, the way their legal systems define and apply consent is quite different. It’s especially important knowledge to have if you ever find yourself in a legal situation while abroad.
Today, we’ll take a closer look at how consent is defined in Spain compared to the UK, and explore how these laws have evolved, as well as highlight the key differences that are important to keep in mind. If you or someone you know is in a situation where these differences affect you, our team of English-speaking solicitors in Spain is here to help.
Spain’s “Only Yes Means Yes” Law
In August 2022, Spain enacted a new law known as the “Only Yes Means Yes” law, which changed the way sexual assault is defined. The idea is simple: sexual activity is considered assault if there isn’t a clear agreement or affirmative consent from both parties, meaning sexual activity must have a clear, voluntary agreement. This means that instead of needing to prove that someone was forced or threatened, the focus is now on whether there was an explicit “yes” given for the encounter or whether that “yes” can be inferred from clear, affirmative actions that indicate agreement, removing the burden from victims to prove force or resistance.
This law has been generally well-received in Spain because it aims to better protect victims and is a reminder to everyone that consent should always be explicit and enthusiastic. However, it’s also worth noting that while this law shifts the focus of the case to affirmative consent, courts still evaluate all available evidence (including the context and statements from both parties) to ensure an accurate and fair outcome. This law strives to create a safer environment and provide more support to those who experience sexual violence.
The UK’s Sexual Offences Act 2003
In the United Kingdom, the Sexual Offences Act 2003 takes a slightly different approach to consent. It defines consent as a person agreeing by choice while having the freedom and capacity to make that choice. If there is violence involved, threats made, or if the person is unconscious, the law presumes that consent was not given.
Unlike Spain, where the focus is on affirmative consent, the UK system places the responsibility on the prosecution – the side trying to prove that a crime occurred – to demonstrate that consent was not given. This requires clear evidence, though certain legal presumptions can help. For example, if violence was used or the person was unconscious, the law assumes a lack of consent. However, it’s important to keep in mind that, in cases involving intoxication, the law does not automatically assume consent was not given. Instead, it considers whether the person had the capacity to consent based on the circumstances of the situation.
The main differences between consent laws in the UK and Spain
The main difference between the two legal systems is how they define consent in sexual situations. In Spain, the law is very clear: there must be an obvious and explicit agreement between both parties for any sexual activity to take place. If that agreement is missing, it can be considered sexual assault. On the other hand, the laws in the UK focus more on each person’s freedom and capacity to make their own choices.
Another important difference between the two countries’ legal systems is who is responsible for proving what happened in court. In Spain, the burden of proof still lies with the prosecution, but victims no longer have to prove they physically resisted or were forced, making the legal process more straightforward. In the UK, however, the prosecution must prove on behalf of the victim that consent was not given, though certain legal presumptions can support this process.
How we can help at Gascon Bernabeu
We specialise in Spanish law at Gascon Bernabeu, providing accessible and professional legal advice to anyone who needs guidance on legal matters in Spain. Navigating a different legal system can be overwhelming, especially when laws and procedures differ from what you’re familiar with. That’s where we come in.
If you need guidance on consent laws or any part of criminal law in Spain, our skilled English-speaking solicitors are ready to assist you. We make sure you know your rights and understand the legal process, providing support throughout your journey.
If you need legal assistance or have questions, feel free to reach out for a free, no-obligation consultation. You can contact us at info@gbabogados.co.uk, call us at +44 (0)20 3137 1320, or use the contact form on our website. We’re here to help!