CHAPTER 14

• Jurisdiction: United States

CHAPTER 14

Spain: #Justiciamachista, #Cuéntalo, and Stop Eating Strawberries!

Ruth M. Mestre i Mestre¹

There's no Weinstein case in Spain. Indeed, if #MeToo is only about sexual harassment, then one could argue there is no such thing as a Spanish #MeToo. A case of sexual harassment against Moroccan women working in Spain hit the media in 2018, but it did not receive as much attention as other cases of gender-based violence.

This was not the first time that harassment went unnoticed. In 2016, two major cases received media attention, one concerned the human resources director of a public TV station (Canal 9) who was accused by three female co-workers; another concerned a university professor who was sexually harassing female colleagues. Important as these cases were, they did not provoke a response from the general public or the feminist movement. However, one would have expected a different reaction two years later, because if #MeToo is about making sexual violence visible, then its impact in Spain was extraordinary.

The case that put violence against women back on the Spanish political agenda, generating indignation, reaction, street demonstrations, social mobilizations, and legal changes began in 2016. During the San Fermines "running of the bulls" event in Pamplona, five young men gang-raped an eighteen-year-old girl, filmed the rape, and shared the video through a WhatsApp group called "La Manada" (the Wolfpack). She reported the rape to the police that night and the five men were arrested the following morning ( July 2016). By November 2017, the trial was receiving immense media attention. On November 17, the defense lawyer submitted as evidence to the court a report by a private detective showing the victim's behavior after the alleged rape, presumably revealing that she was not particularly traumatized, thus "proving" that the accusations of rape were false. The court decided to accept the report for evaluation, and women from all over the country spontaneously demonstrated, chanting: "We are your pack" and "I believe you." Those November 17 demonstrations were the first of a series of feminist protests that continued into 2018.

The global #MeToo movement put those protests in a broader context of protesting against sexual violence. The Spanish feminist movement successfully claimed that sexual violence is a painfully common experience; that the legal system and legal process revictimizes us; that social agreements subordinate women in many different ways and settings; and that we have had enough. There is, however, an urgent need yet to be addressed regarding the sexual violence and harassment that seasonal migrant women face in Spain.

Legal Framework for Sexual Violence and Sexual Harassment

The fight against violence against women in Spain had two important moments before 2018. In December 1997, Ana Orantes was burnt alive by her ex-husband after she denounced forty years of abuse on a television program. For many, this was the awakening from a delusion of equality, that started with the death of the dictator Francisco Franco in 1976, and the recognition of equality between men and women in the new Spanish Constitution (1978). Her murder put violence against women (VAW) on the political agenda and set the road to a major achievement: the passing of the Comprehensive Protection Measures Against Gender-Based Violence Act (2004).²

With this act, the law moved away from previous conceptualizations by clearly stating that gender-based violence is a manifestation of inequality. The act includes provisions on labor law, healthcare, social work, education, and criminal law, and builds a comprehensive framework protecting women who suffer violence. The act states that its purpose is to: "combat violence against women by their present or former spouses or by men with whom they maintain or have maintained analogous affective relations . . . as an expression of discrimination, the situation of inequality, and the power relations prevailing between the sexes." Thus, although it appropriately points to the cause of violence being the structural power relations of men over women, the law only protects women from intimate or domestic violence,³ leaving all other forms of gender-based violence against women outside this equality framework.

The second moment for framing certain forms of VAW as a matter of equality was in 2007 when the Effective Equality of Women and Men Act (the Effective Equality Act) passed as a result of the European directives on equality.⁴ Both, the Spanish Criminal Code and the Labor Code had contained provisions against sexual harassment since 1995. However, the Effective Equality Act introduced the idea that sexual harassment was a form of discrimination.⁵ The act established several preventive measures regarding harassment, such as the requirement that companies, state administrations, and every public service create protocols to prevent and punish sexual harassment in the workplace. Unfortunately, the effectiveness of such protocols is questionable.⁶ Further, many companies and organizations do not take measures until cases reach the threshold of a criminal offense and other actors intervene.

Thus, by 2017-2018, the legal framework was being criticized from different perspectives, as protection against gender-based VAW was limited to "women in relationships"; the legal system re-victimized women, accepted victim-blaming arguments in rape cases; while sexual harassment measures and preventive actions were ineffective. For some, referring to all this as "indirect discrimination" (the only legal concept available), or even "structural discrimination," seemed...