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Spanish government to alter sexual consent law to fix loopholes

Spain's leftwing government said Monday it was looking to modify a landmark law to fight sexual violence to close a loophole that has let some convicted offenders reduce their sentences.

Spanish government to alter sexual consent law to fix loopholes
Spain's Minister for Equality Irene Montero (R). Photo: Thomas COEX / AFP

Since the law came into force in October, around 20 offenders have reportedly been released and 300 others have seen their sentences reduced.

Prime Minister Pedro Sánchez’s Socialist party has announced plans to reform the law.

“In the coming days, we will present a draft bill, a meticulous text that will provide a response and a solution to these undesired effects which we obviously don’t want to see repeated in the future,” said Education Minister Pilar Alegria, who is also party spokeswoman.

“Logically, the best way to specifically address these undesired effects would be to increase the penalties for sexual offenders,” she told reporters.

READ ALSO – ‘Only yes means yes’: Spain tightens sexual consent law

The controversy erupted barely six weeks after the entry into force of the “Only yes means yes” law, which reformed the criminal code in a bid to define all non-consensual sex as rape.

The overall aim of the law was to shift the focus in cases of sexual violence from the victims’ resistance to a women’s free and clearly expressed consent.

To this end, the charge of sexual abuse was dropped and everything was grouped under sexual assault. The range of penalties was widened to include all possibilities under that single term.

READ ALSO: How Spain is trying to fix its new trouble-ridden sexual consent law

The law effectively reduces the minimum and the maximum punishment in certain specific cases and hundreds have applied to have their sentences revised.

‘Consent must remain at the centre’

Over the weekend, reports that the government was mulling changes to the law prompted tensions between the ruling Socialists and their hard-left junior coalition partner Podemos, which has championed the legislation.

The right-wing opposition Popular Party (PP) had quickly moved to offer parliamentary support if the Socialists wanted to push through the changes without Podemos.

But Podemos reacted angrily. Equality Minister Irene Montero warned that such a move would mean the law reverting to its original format and she vowed to do “whatever necessary” to ensure consent was kept at the centre.

Her stance was hammered home by party leader Ione Belarra on Monday morning. “Consent has to remain at the heart of the criminal code. We can’t go back to the evidentiary ordeal of proving we resisted enough or that we hadn’t been drinking,” tweeted Belarra, the social rights minister.

Socialist ministers insisted the planned changes would merely address the loopholes and would not touch the issue of consent.

“The correction and modification of the law is designed to avoid any undesired outcomes in the future and the issue of consent will remain at the centre of the law against sexual assault so that women avoid enduring the ordeal of proof in court,” cabinet minister Felix Bolanos, a close Sánchez aide, told reporters.

Until now, rape victims had needed to prove they were subjected to violence or intimidation. Without that, the offence was considered “sexual abuse” and carried lighter penalties than rape.

With “sexual abuse” dropped from the reformed criminal code and a much wider range of offences grouped under “sexual assault”, a broader range of penalties was required to ensure proportionality.

At the weekend, Montero said it was only a “minority” of judges who had applied the law incorrectly.

She said there were similar teething problems with Spain’s landmark 2004 domestic violence legislation, the first in Europe, which faced “almost 200 questions” about its legality in the first years after it was passed.

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PROPERTY

Why Spain is unlikely to ever ban foreigners from buying property

After several regions around Spain have attempted to bring in limits on property purchases by foreigners, members of Spain's government coalition have even started floating the idea of an outright ban at a national level.

Why Spain is unlikely to ever ban foreigners from buying property

In recent years several regions around Spain have attempted to put limits on foreigners buying homes and clamped down on tourist rentals. These are mainly in areas traditionally popular with foreigners, and many have become places with highly inflationary property markets.

In 2022 Canary nationalist political party Nueva Canarias demanded the regional government address the large number of property purchases by non-residents in the archipelago, and even suggested a limit on the number of properties that can be bought by foreigners altogether in the popular holiday islands.

READ ALSO: Will Spain’s Canary Islands limit sale of properties to foreigners?

Property prices have surged across Spain in recent years, sparked in part by an influx of post-pandemic purchases by foreigners, as well as tourist accommodation geared towards wealthy remote workers and digital nomads pushing up rental prices and pricing out locals. Increasingly, landlords will buy properties with the aim of converting them into Airbnbs, thus removing them from the pool of available (and affordable) housing stock for locals.

This comes after Spain’s other archipelago, the Balearic Islands, also started this same debate in November 2022, with the regional Senate agreeing to discuss solutions.

In the two decades from 2000-2020, the islands’ population grew by 50 percent – rising from 823,000 to 1,223,000 inhabitants. Around a third (32.67 percent) of property purchases in the Balearics are made by foreigners, and of those 57.4 percent are residents, while the remaining 42.6 percent are non-residents.

National ban?

But it’s not just a regional issue. In 2024, the debate rumbles on in parts of Spain particularly affected by foreign home owners and members of the Spanish government are even proposing similar measures at a national level. Though, it should be said, no policy has been decided on yet, and any move such as a ban (in whatever form, on whatever type of property) or even a limit would likely face fierce opposition from the main opposition parties, notably the centre-right Partido Popular (PP).

Sumar, the far-left junior coalition partner in the Spanish government, has even gone as far as proposing a three year ban on the purchase of housing by investment funds and non-residents in Spain.

This was recently outlined in a (for now) non-legislative proposal that was presented to the Spanish Congress’ Housing Commission. It was roundly rejected with the vote of, among others, its coalition partner in government, the Socialists (PSOE). That’s not to say the PSOE is totally against the idea, however.

Socialist Minister for Housing Isabel María Pérez said of the plans: “We agree on the philosophy of the proposal, but with nuances,” she said. “We have submitted an amendment but we think it will not be accepted, so we will not be able to support this bill,” she added.

So, from that we can take that the junior partner in the Spanish government wants to ban non-residents and investment funds from buying property in Spain, and the senior partner (Prime Minister Pedro Sánchez’s party, no less) supports the principle but not the practicalities.

READ ALSO: Spain’s new housing minister vows to protect second homeowners

The argument against

Clearly, non-resident foreigners buying up property in Spain, particularly in its space starved archipelagos, contributes to price inflation, saturates the market, and plays a role in pricing locals out of their own neighbourhoods.

However, it’s not that simple. Clearly, there is a difference between a non-resident foreigner buying a holiday home (perhaps to rent out as tourist accommodation for half the year) and a resident foreigner buying property to live in.

READ ALSO: How important are foreign second homeowners to Spain?

This difference has, for now, been reflected in proposed limits at both the regional and national level, rather than outright bans.

However, foreign home owners in Spain also make a huge contribution to the Spanish economy. In 2022 foreigners with a second home in Spain contributed €6.35 billion to Spanish GDP and generated more than 105,000 jobs in the tourism sector, according to the study “The economic impact of residential tourism in Spain” done for the Spanish Association of Developers and Builders (APCE) by PricewaterhouseCoopers (PwC).

The financial contribution made by these second-home owners in Spain is clearly significant. In fact, experts point out that the money brought into the Spanish coffers by foreign homeowners even outstrips some major industries.

“The contribution of residential tourism to GDP is triple that of the textile industry, double that of the timber industry and the same as the manufacture of pharmaceutical products in Spain,” Anna Merino, director of the Economics team at PwC, said when presenting the study. Every euro spent by ‘residential tourists’ adds €2.34 to Spanish GDP. On top of this direct contribution to the Spanish economy, the surrounding economic activity associated with the spending generated 105,600 full-time jobs in 2022.

So, there’s clearly an economic argument against banning foreign property purchases completely.

In the case of the Balearic Islands specifically, the proposals have met some opposition. The Balearics, which generates 35 percent of its GDP from tourism, according to figures from Caixa Bank, has long been a holiday or second-home hub for wealthy foreigners.

On this point, right-wing Popular Party member Sebastià Sagreras suggested in the regional parliament back in 2022 that conflating the foreign-buyer property market with local shortages is unhelpful, adding that the properties bought by foreigners, often worth more than a million euros, “do not compete” with those that cost €200,000 or €250,000 and are largely bought or rented by national residents.

Is it even legally possible?

Denmark, Malta and the Aland Islands in Finland all have restrictions on how non-resident foreigners can buy properties in their territories. However, they introduced these before entering the EU and these limits were factored in and accepted by Brussels. For Spain to do this, it would be much more difficult.

For local authorities in both the Balearic and the Canary Islands it could prove difficult to go against the EU’s legal principles of the free movement of people and capital, experts say.

This means that other potential solutions may be needed. Though there doesn’t seem to be a national level ban on foreigners from buying properties in Spain anytime soon, several regions have been attempting to do it for a couple of years, at least for non-residents, and even the national government is beginning to try and do something about it.

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