Can Spain Learn From Sweden’s New Sexual Assault Law?

Spain and Sweden started with parallel stories: decades of conservative sexual assault laws, skewed against the victim. A recent public rape case with a verdict that supported the perpetrator. Public backlash, protests, media campaigns. Political reactions, movements to change the law. Where these stories differ is while Sweden reformed its sexual assault law last July to adopt a “no means no” standard of consent, Spain has maintained its archaic laws. This begs the question–does Sweden provide a feasible model for Spanish legal reform? In short, no. Spain’s unique history with the Franco dictatorship and Catholic state has perpetuated social stigmas that make it very difficult for Spain to follow in Sweden’s footsteps. Nonetheless, this does not mean that change is impossible, as Spanish NGOs and the Spanish government could learn from the Swedish movement.

Both Spain and Sweden suffered very public, horrific rape cases in the past decade. In 2013, Sweden faced the “Bottle Rape Case” in which three men raped a 15-year-old girl with a wine bottle until she bled. The court acquitted the men because “people involved in sexual activities do things naturally to each other’s body in a spontaneous way, without asking for consent,” and that her refusal to open her legs might have been a sign of “shyness.” In a similar story, in 2017 Spain was rocked by the “Manada case”  in which five men who called themselves “The Wolf Pack” filmed their gang rape of a young woman. The court sentenced the men to nine years in prison for “sexual abuse.” They were not found guilty of rape (a higher legal standard) because there was “no evidence of violence” and because the women remained in a stupor and did not fight back against the perpetrators.

In both cases, the courts’ rulings were met with significant anger and caused great public backlash. In the case of Sweden, the discontent from the Bottle Rape Case led to the formation of a new national movement, FATTA, or “Get It” in English. With the goal of changing the law to reflect the idea that sex without consent is rape, the organization lobbied the government for the next five years. This was coupled with the worldwide #MeToo movement, which propelled and popularized the FATTA movement. As such, on July 1st of 2018, in a Parliamentary vote 257 to 38, Sweden passed a law that says that rape is sex without clear verbal or physical consent. In doing so, Sweden joined other European countries like the UK and Germany in stating that prosecutors no longer need to prove violence or a victim’s vulnerability in order to establish rape.

Following the Manada case in Spain, thousands of people protested the court’s ruling in public demonstrations across the country, shouting phrases like “This justice is bullshit!” and “It’s not abuse, it’s rape!” Nonetheless, Spain still maintains its de jure law which requires both violence AND intimidation towards a victim in order to be considered rape. This is coupled with the de facto law, which says that the victim must fight back against the aggressor. Only by fulfilling these three standards is someone legally considered a rape victim. A panel of legal experts and the current Prime Minister have advocated for a “no means no” law, and there is a currently a draft of a new law in the Spanish parliament. Nonetheless, there still has not been any notable legal success.

"Spain’s unique history with the Franco dictatorship and Catholic state has perpetuated social stigmas that make it very difficult for Spain to follow in Sweden’s footsteps."

Why was there legal change in Sweden, but not in Spain? Like any socio-political question, the answer is not clear cut. Nevertheless, there are two notable aspects of Spain’s political and cultural history that make legal reform so difficult. First, the history of the Franco dictatorship. During the 36 years of the Franco dictatorship, women were relegated to the household and were stripped of their legal and civil rights. For example, they were not allowed to open bank accounts, get passports, or even work without their husband’s consent. Because women were stripped of basic rights, dialogue regarding sexual violence, especially that which occurred between married couples, was practically unheard of. This was also the case for marginalized sexual identities like people from the LGBTQ communities. Secondly, these legal policies were strengthened by the strong role of the Catholic church, which propagated stereotypes about domestic and submissive woman. It was only in 1978 that the constitution of the newly democratic state granted civil rights to women and to marginalized communities, starting the legal path toward civil rights reform.

It has taken even longer for stereotypes and sociological trends to change. It has only been 40 years that Spain has been a democracy and that women have had equal rights under the law, compared to about 100 years in Sweden. These governmental and legal structures have ramifications for societal perspectives regarding such “taboo” issues, which in turn reinforce and perpetuate antiquated laws. For example, half of Spanish men and 45.6% of Spanish women believe that rape “often” happens because of alcohol consumption, and 15% believe the victim is partly at fault for “having lost control” if they are drunk.  Moreover, 40% of men and 30% of women believe that victims are responsible for stopping sexual abuse by simply asking. Therefore, it is not surprising then that an estimated 80% of rape goes unreported in Spain, although more and more people are reporting as the stigma slowly lessens.

In contrast, Sweden has fostered active dialogue about sexual freedom, equality, and safety for many years. The Swedish government has declared itself feminist, and feminism is one the pillars of its foreign policy. Sweden is currently the largest donor to UN Women and UN Action Against Sexual Violence in Conflict. According to the Swedish government, it aims to achieve gender equality by including men in the conversation in order to mitigate toxic stereotypes about masculinity. An example is the “Fatta Man” project run by several organizations in Sweden, which enables men to contribute to movement against sexual violence. Even conservative male politicians call themselves feminists, and women make up 45% of representatives in parliament. Meanwhile, one of the far-right parties in Spain aims to roll back laws protecting gender equality, citing “supremacist feminism and gender totalitarianism” as a major issue facing Spain.

Thus, the key difference between Sweden and Spain is that in Sweden, there was a culture of civil and political rights, based on over a century of feminist policy. Moreover, there were also organizations lobbying for legal reform decades before the public rape case sparked widespread support. In Spain there was a spark but there wasn’t the firewood, the social support, already in place–it lacked the public awareness and appreciation of these issues.

This is not to say that Sweden is perfect–Sweden still suffers one of the worst rates of reported sexual violence in Europe. Yet the high rate of reporting in Sweden compared to Spain speaks to the two countries’ cultural differences. These cultural, historical, and political differences are significant, which is why Sweden is not a perfect model for Spanish legal reform. Yet, that does not mean that Spain cannot glean lessons from Sweden. This is especially true not just for the Spanish politicians, but for the NGOs and human rights groups. The reason that Sweden was successful was because the national movement HATTA and the Me Too movement were able to centralize their goal, focusing only on the one specific legal reform. In Spain, the majority of popular movements, like the M8 International Women’s Day strike, focuses on general issues of gender equality, economic opportunity, etc. While these issues are extremely important and provide a social base for these more specific legal goals, if Spain wants to change its sexual assault laws, it should consolidate its efforts. This is a global human rights struggle, and in order to be successful, countries should learn from the practices and experiences of others.

Photo: “Law

About the Author

Ava Rosenbaum '20 is a Staff Writer for the Culture Section of the Brown Political Review. Ava can be reached at ava_rosenbaum@brown.edu

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