Sexual consent in the Spanish Criminal Code: shadows of its political and legal construction through the Law on the Comprehensive Guarantee of Sexual Freedom

Abstract

The criminal regulation of sexual crimes in Spain has recently been modified in order to include a consent-based definition of rape. From a feminist framework, this socio-legal research calls this criminal reform into question. Specifically, the main objective is to study the potentialities and constraints of the legal element of sexual consent to meet women's lived experiences and their ways of performing gender. Drawing on the works of feminism and legal feminism of the last century that dismantled heteropatriarchal sexual politics, as well as relying on current feminist approaches to consent, I expose the shadows, grey areas, and deep-rooted assumptions that underlie the political-legal construction of this hackneyed concept. To do so, I primarily use Carol Bacchi's critical policy analysis in order to explore the Spanish criminal policy discourse concerning this penal modification. In my analysis I examine the preparatory works of the legislative amendment as well as selected oral debates held in the Congress of Deputies and in the Equality Commission. The main findings show how this policy contradicts and collides head-on with many foundational contributions of feminist theory in relation to sexual violence. Nonetheless, relying on broader historical discourses of human rights and international law and repeatedly alluding to the feminist social movement, as well as due to the functionality of the modern notion of consent in a neoliberal system, this legislative amendment enjoys a high level of acceptance.