How many years in prison for sex offenders?

In October 2022 the Organic Law guaranteeing sexual freedom, more widely known as the “Only yes means yes” law, came into force in Spain. It stipulates that any sexual act without consent is now regarded as a crime of sexual assault, and the concept of mere “abuse” has been eliminated. The law covers any kind of violence perpetrated against women just because they are women. It reinforces the measures to protect the victims, in particular women, and establishes special protection measures for children. Measures to combat the prostitution business are included. It emphasises affective-sexual education and effective equality of rights, resources and opportunities for everyone regardless of their gender identity.

This law is necessary, and I believe it is very appropriate in its basic philosophy and in its specific articles. A law passed by a large majority in the Spanish Parliament. A law celebrated practically unanimously by the victims of all kinds of sexual violence, in particular women, until… Until some of those convicted under the previous law began to see their sentences reduced or were even released from prison by taking advantage of an (inadvertent?, inappropriate?) loophole in the new law. And “public alarm” spread, perversely provoked or encouraged by the political right with all the means at their disposal; they are not concerned about defending the victims, but about eroding the Government of the social left. The reduction in prison sentences is nothing more than a pretext and a gross manipulation of the victims –and the perpetrators– in the name of justice. And they are well on their way to achieving their vile purpose.

There are reasons to be concerned. Like so many ordinary citizens, I am perplexed to see how some judges reduce sentences and how others, in identical or similar cases, do not do so, and I cannot help but wonder: Is it because the law is so unfit for purpose or is it because the judges are not so impartial? And I cannot see how best to tweak or reform the law; I am not even aware of any need to do so, unless it is to avoid providing the opposition with weapons or arguments. Meanwhile, one cannot fail to notice the conflicts of partisan interests, which  are evident in this ongoing multiple pre-election campaign, and even within the coalition Government, to the disillusionment of its voters, the delight of the right and the detriment of the common good of the majority of the people.

However, I leave all this on one side, and propose a fundamental reflection on the very meaning of prison in relation to the victim and in relation to the perpetrator. I do so because the public alarm and political debate revolve precisely around the reduction of prison sentences. And I wonder: Who has something to gain if a sex offender –even the most violent and re-offending rapist– spends two or five or ten or twenty or however many years behind bars?

Does the victim stand to gain? Might her dreadful wounds be alleviated or healed because her attacker is behind bars? “At least she can be sure that while he remains in prison he will not attack her again,” people say, and that is true, but only partly true. It would be completely true if prison were the only way to reasonably ensure the safety of the current victim and other potential victims, and if the perpetrator spent his entire life in prison. The person assaulted, the current or potential one, must clearly be the first to be protected and the primary criterion regarding all the measures to be taken. But I cannot believe that a humanity that invests such colossal amounts in artificial intelligence and such sophisticated weaponry cannot implement measures to ensure security in a more efficient and humane way than by means of prison. To think otherwise would be to renege on faith in humanity, in its intelligence, in its sensitivity, in the vital breath that inhabits and moves it.

Does the offender stand to gain anything from spending days and years in prison, endlessly inhaling adrenaline, despair and contempt? Is there really anything to gain? Or won’t he be more likely to lose everything: his dignity, his rights, his freedom, his present and future life? Isn’t prison the punishment he deserves to atone for his guilt? No it isn’t. Punishment, atonement, guilt… these are old categories dating back many millennia when people believed in unconditioned free will and in guilt and religious, metaphysical atonement for wrongdoing through punishment or suffering. These are categories that no longer make sense. All the sciences and philosophy and spirituality show us that we are not free, but that we are called to be free, that no one does evil because they are truly free, but because they are not free. So in the philosophy of law of the last 200 years, prison has ceased to have a punitive meaning, i.e. it is no longer valid or justified as a punishment for the crime committed, for the harm inflicted. So what is the point of prison? The Spanish Constitution makes it clear: “Punishments entailing imprisonment and security measures shall be aimed at rehabilitation and social reintegration” (Art. 25.2). So the purpose of prison is not to punish the offender or criminal, but to heal and humanise them.

But does anyone believe that the current prison model is any use at all in re-educating, rehabilitating and reintegrating the sex offender or the offender in general? Every study in the world says it isn’t. This should be carefully considered by those who are so alarmed that a prisoner will be released or have his sentence reduced. And we should ask ourselves very seriously: Is there any reason to be alarmed when a law –as in the case of the law I am referring to– provides for a (minimal, in fact) reduction in prison sentences in order to prioritise other more healing and saving, more humane and humanising measures? Who stands to benefit from punishment and alarm? Shouldn’t we actually be alarmed by the dismal lack of personal and social measures that could help to truly heal the victims and assuage their suffering, to liberate and socialise the perpetrator, to humanise society as a whole?

I don’t know whether it is a pipe dream, but I dream that the day will come when no one who has been assaulted will need the aggressor to be imprisoned so that their wounds can be healed, their self-esteem can be restored, and their dignity can be repaired. I dream of the day when no one will fall victim to their physical drives, their psychological wounds and their mental mistakes to the point of assaulting another person, using them for their own pleasure and leaving them abandoned. I dream of the day when no one will be alarmed that prison sentences should be reduced or eliminated, the day when no one, for whatever reason, will take to the streets to demand more punishment and revenge.

I don’t know whether it is a pipe dream, but I firmly believe that this possibility is inscribed in the deepest part of our personal and collective DNA, and that we can make it happen, that we can make our species a more humane and happier species, if we really want that and if we apply, personally and institutionally, all the measures within our reach: science, education, economics, politics.  Then the emergence of Homo sapiens 300,000 years ago will have been worthwhile. Then we will have become wise and human, spiritual humans in the community of the living.

Aizarna, Basque Country. 11 February, 2023
(Translated by Sarah J. Turtle)