Sometimes a ‘yes’ is not sufficient for it to be deemed that consent has been granted under our law. This is because for it to be valid it is required that all necessary information pertaining to the business we are referring to – the benefits, risks and consequences – has been made available beforehand, and one must be of sound mind and have the capacity for this. In some cases, a minimum period is stipulated between the moment that information is provided and the time of the decision.

What’s more, this yes is not boundless, it only goes as far as the information previously disclosed.

An example of this is the banking sector – which is currently more demanding than ever before – where financial institutions are required to provide customers with an information pack that must be made available at least seven days before a mortgage contract is signed. In this respect, mention should be made of the ruling of the First Chamber of the Supreme Court in Civil Matters 71/2018 of 13 February, which sets out that the absence of adequate information does not in itself determine the existence of error or flawed consent, however it does permit the presumption of such, and that the legislation of the stock market attaches great importance to the correct understanding of the risks borne by contracting products and investment services on the part of the customer.

In the case of sporting activities, a distinction is made between the normal risks associated with the activity incurred by athletes and abnormal, atypical, qualified and increased risks.

The paradigm of informed consent falls within the scope of the health sector as defined in Act 41/2002 of 14 November which regulates patient autonomy as well as rights and obligations with regards to clinical information and documentation, such as free, voluntary and deliberate conformity of a patient, expressed with a sound mind after having received the adequate information, in order for an act to take place that affects his or her health. For example, that which we now refer to as the Living Will is derived from this consent, with which any person can express their desire that treatment is not performed on them in the case of terminal illness.

So much so that the Third Chamber of the Supreme Court in Administrative Matters, Section 4, among others, sets out in its Ruling of 13 November 2012 that the infringement of the right to informed consent in itself or by itself constitutes a violation of the lex artis ad hoc, which infringes the right of self-determination by preventing people from choosing between the various life choices that they are presented with in an informed manner and in line with their own interests and preferences.

In some cases, however, consent is simply not enough, instead there is the need for legal counsel, for example in the case of biological samples being taken in order to obtain the DNA of a detained person for the purpose of carrying out an appropriate test to shed light on the event that led to his or her detention, as well as in the case of entering and searching his or her home as the latter encroaches on the constitutional right that is the inviolability of the home.

All this leads us to draw conclusions on the absurdity of our Penal Code where it establishes that acts that are performed on people who are incapacitated and those which override the will of the victim with the use of pharmaceuticals, drugs or any other natural or chemical substance to this end do not constitute rape, but rather sexual abuse without consent. Assuming that there is no consent, this should be considered rape as violence or intimidation takes place when the will of the other person is overridden and their incapacity is violated.

The Penal Code could prove equally insufficient where it establishes that rape committed jointly by two or more persons is a type of aggravating circumstance, treating it as if it were the same crime when it should be considered a separate offence that is far more serious than rape committed by one person, since the society in which we live rejects this even more strongly.

Something is shifting and this will very much aid the exemplary social response in the defence of sexual liberty or integrity, whereby consent implicitly accepts the health and/or pregnancy risks, and these risks are multiplied when more than one person are involved in the offence, in order to raise the awareness of what is right and what is wrong, and that not everything is acceptable. It is crucial that the victims feel supported by society, especially women, thereby eradicating any hint of machismo.

Once the offence has been put into context and the victim identified, the person who should be judged is the alleged aggressor. If someone enters a home to commit an offence, he/she is creating an undesirable situation for those who live there and assumes the risk for that which occurs. If those who live there freeze and do not defend themselves, this would never imply that they are consenting to the intrusion, and if they do defend themselves, this should be considered self-defence without much concern for the proportionality of the defence method they use; and if this defence method turns out to be illegal, this may also be considered to be unlawfully obtained evidence having infringed the fundamental right that is the inviolability of the home. This is reminiscent of the American theory of the fruit of the poisoned tree.

Things are what they are and not what they are called and, beyond stances and political agreements, it was a woman who won the last Catalan elections, even though the international community is probably not aware of it, because for some it represented no threat to their utopian dreams while for others it did not get in the way of their partisan interests. However, this would have been good for a modern and non-chauvinist image of Spain in general, and in Catalonia in particular, that the international community would have seen.

I do not want to end this observation without touching on the special memory of a woman who recently left us too soon, Julia de Paz. She was one of the best administrative lawyers I have ever met, who gave me the honour of being the witness at her swearing-in ceremony, and was an example to everyone of how to go about life with joy in the moments that really matter.