Gender violence lawyer in Barcelona

Domestic violence can be defined as violent acts that occur within the framework of a family or cohabitation relationship.

Unlike what happens with gender-based violence, both men and women can be victims and aggressors of domestic violence.

One of the greatest advances in the protection of victims of this type of violence was the approval of Law 27/2003, of July 31, which created the protection order for victims of domestic violence, an instrument designed to guarantee the comprehensive protection of victims.

On the other hand, gender-based violence encompasses acts of both physical and psychological violence perpetrated by a man against a woman simply for being a woman.

Organic Law 1/2004, on Comprehensive Protection Measures against Gender-Based Violence, expanded the protection of victims of this type of violence. Among other new features, this law expanded the possibility of requesting a protection order for women victims of gender-based violence and also established the Courts for Violence against Women.

Although the aforementioned law embraces a broad concept of gender violence, which, as we have seen, encompasses violence perpetrated by a man against a woman simply for being a woman, the truth is that the Penal Code only imposes a higher penalty Gender-based violence occurring within the context of a relationship and, more specifically, when the victim is or has been the wife of the aggressor or is or has been linked to him or her by a similar emotional relationship. However, the Criminal Code does not require that the perpetrator and the victim lived together; it is sufficient that they maintained a relationship analogous to marriage.

Therefore, in crimes of gender-based violence, the interpretation of the concept of “analogous emotional relationship” becomes particularly relevant, as it determines whether the same acts are punished with a greater or lesser sentence. In this regard, the Supreme Court has adopted a broad concept, understanding that we are faced with an analogous emotional relationship when there is a certain degree of commitment or stability, even if there is no fidelity or shared expectations for the future. However, purely sporadic relationships or simple friendships are excluded (Supreme Court Ruling No. 697/2017, of October 25).

Generally speaking, if an act is classified as gender-based or domestic violence, the penalty is higher than that which would apply if the same acts did not occur within the context of gender-based or domestic violence.

Sometimes, the Criminal Code even goes a step further, punishing certain acts as crimes that, as a general rule, would not constitute crimes and only become crimes if committed against family members or people who live with the perpetrator. This is the case, for example, with the crime of unjust insult or harassment under Article 173.4 of the Criminal Code.

On the other hand, victims of gender-based or domestic violence have the option of requesting a protection order, through which the judge can impose a series of civil and criminal precautionary measures on the person under investigation. These measures may include imposing a prohibition on contact and/or communication with the victim during the criminal proceedings, modifying the custody arrangements for the children, and many other measures.

Furthermore, in cases of gender-based violence, the facts are investigated by the Courts for Violence against Women, which are courts specializing in this type of violence and handle both criminal and civil cases arising from a situation of gender-based violence.

Thus, for example, if a woman files a complaint for alleged abuse committed by her ex-husband, the investigation into these events will be the responsibility of the Court for Violence against Women.

Article 153.1 of the Criminal Code regulates cases of minor and occasional gender-based and domestic violence, punishing with greater penalties conduct that, if it did not affect the persons mentioned below, would constitute a crime of bodily harm under Articles 147.2 and 3 of the Criminal Code.

What is the crime of abuse?
The crime of abuse consists of causing another person psychological harm or an injury that does not require medical or surgical treatment for recovery, or hitting or abusing without causing injury. If the injuries caused are more serious, that is, if they require medical or surgical treatment for recovery, the acts will constitute a crime of bodily harm under Article 147 of the Criminal Code or, in a case of gender-based violence, a crime of aggravated bodily harm under Article 148.4 of the Criminal Code.

For example, if the perpetrator slaps his wife in the face without causing any injury, this would be a crime of abuse under Article 153 of the Criminal Code. If the perpetrator hits her, causing a wound that requires stitches, this would be a crime of aggravated bodily harm under Article 148.4 of the Criminal Code.

Who can be victims of the crime of abuse under Article 153 of the Criminal Code, and what is the penalty for the aggressor?
The crime of abuse applies to both gender-based and domestic violence, although the penalties imposed in each case vary.

On the one hand, if the victim is or has been a wife or other woman linked to the perpetrator by a similar emotional relationship, even if they did not live together, that is, if we are dealing with a case of gender-based violence, the penalty is imprisonment of 6 months to 1 year or community service of 31 to 80 days (art. 153.1 CP). Furthermore, the judge may impose a penalty of disqualification from exercising parental authority for up to 5 years.

On the other hand, if the perpetrator assaults his or her descendants, ascendants, siblings, or those of his or her spouse or partner, or any other person who is part of his or her family unit, the acts are punishable by imprisonment of 3 months to 1 year or community service of 31 to 80 days (Article 153.2 of the Criminal Code). The Court may also impose a penalty of disqualification from exercising parental authority for 6 months to 3 years. This constitutes a case of domestic violence.

In any case, the penalties are imposed in their upper half if the crime is committed in the presence of minors or using weapons, in the common home or at the victim’s residence, or in violation of a precautionary measure or a restraining order and/or communication restriction.

Finally, the judge may impose a lower penalty, taking into account the personal circumstances of the perpetrator and the circumstances in which the crime was committed.

The crime of habitual abuse is characterized by the habitual exercise of physical or psychological violence against a person who is or has been the perpetrator’s spouse or a person linked to them by a similar emotional relationship, against the perpetrator’s own or the perpetrator’s own descendants, ancestors, siblings, or those of the perpetrator’s spouse or partner, or against other persons within the family unit. In this case, we are dealing with a case of domestic violence.

What type of violence is punishable by the crime of habitual abuse?
Both physical and psychological violence are punishable. Acts of physical violence can range from physical abuse without causing injury (e.g., slapping) to serious injury or even murder.

Psychological violence, on the other hand, can consist of humiliation, insults, threats…

For example, the Courts have held that psychological violence exists in cases of telephone, postal, and personal harassment (SAP Madrid No. 277/2007), or when the facts consist of the filing of multiple false complaints before administrative and judicial bodies (SAP Lleida No. 42/2011).

What is meant by habitual abuse for the purposes of the crime of habitual abuse?
As established in Article 173.2 of the Criminal Code, in order to be considered a crime, the violence must be habitual. To assess whether or not it is habitual, the number of acts of violence and the time elapsed between them must be taken into account.
In this regard, the Supreme Court recalls that habitual behavior is not an arithmetic problem; it does not require a minimum number of individual behaviors. It is characterized by a climate of domination or intimidation, of systematic imposition and contempt. What is important is that the aggressor creates a general atmosphere of superiority and dominance over the victim (Supreme Court Ruling No. 684/2021, of September 15).

What is the penalty for habitual abuse?
This crime is punishable by imprisonment of six months to three years and deprivation of the right to possess and carry weapons for three to five years. In addition, the judge may impose a special ban on exercising parental authority for one to five years, as well as supervised release.

These penalties are imposed independently of the penalties for crimes involving physical or psychological violence. For example, if the perpetrator repeatedly physically assaults his or her child, causing various injuries, he or she will be punished, on the one hand, for the crime of habitual abuse and, on the other, for as many crimes of bodily harm as he or she has committed.

Furthermore, the Criminal Code provides for a series of aggravated forms of punishment, which entail the application of the upper half of the penalties when any of the acts of violence are committed in the presence of minors or using weapons, occur in the common home or at the victim’s residence, or are committed in violation of a sentence or precautionary measure prohibiting approach and/or communicating with the victim.

Before the reform implemented by Organic Law 1/2015 of March 30, the Criminal Code punished minor insults or unjust harassment (Article 620.2 of the Criminal Code). This article penalized behavior such as insulting, spitting, or disrespecting others, always taking into account the circumstances of each case to assess whether the facts were sufficiently significant to constitute a criminal offense.

Since 2015, this type of behavior They are only considered crimes when the victim is or has been the perpetrator’s spouse or a person related to them by a similar emotional relationship, a descendant, ascendant, or sibling of the perpetrator or of the perpetrator’s spouse or partner, or another person within the family unit. That is, these acts are currently only punishable in cases of domestic violence.

The penalty for this crime is permanent confinement for 5 to 30 days, community service for 5 to 30 days, or a fine of 1 to 4 months.

The regulation of the crimes of threats and coercion in cases of gender-based and domestic violence follows a very similar structure. Both crimes have a basic form, applicable in cases where the threat or coercion is serious, and a lesser form, punishable by a fine of 1 to 3 months, when the threat or coercion is minor.

In the latter case, that is, when the threat or coercion is minor, the Penal Code provides for an aggravated penalty for cases of gender-based and domestic violence.

On the one hand, when the victim is or has been the victim’s wife or a woman linked to the perpetrator by a similar emotional relationship, that is, in cases of gender-based violence, the penalty is imprisonment of 6 months to 1 year or community service of 31 to 80 days, instead of the previously mentioned fine.

On the other hand, if the threat or mild coercion is committed against a current or former spouse or person related to the perpetrator by a similar emotional relationship, or against a person who is part of the perpetrator’s family unit, that is, in cases of domestic violence, the penalty is permanent confinement for 5 to 30 days, community service for 5 to 30 days, or a fine of 1 to 4 months. Furthermore, in the case of threats, if the threat is carried out using weapons or other dangerous instruments, the penalty is imprisonment for 3 months to 1 year or community service for 31 to 80 days.

Finally, we must bear in mind that these aggravating circumstances only apply in cases where the threat or coercion is minor. However, if the threat or coercion is more serious, we must refer to the basic form of each of the crimes, and may, where appropriate, apply the aggravating circumstance of kinship under Article 23 of the Criminal Code.

In addition to the aggravated offenses and forms mentioned above, the Criminal Code provides for specific aggravations in cases of gender-based and/or domestic violence. This applies, for example, to the crime of sexual assault (Article 180.1.4a of the Criminal Code), the crime of discovery and disclosure of secrets (Article 197.7 of the Criminal Code), the crime of harassment (Article 172 ter, Section 2 of the Criminal Code), and the crime of bodily harm (Article 148.4a of the Criminal Code).

Joaquín Sugrañes is a criminal lawyer with extensive experience in criminal proceedings. Throughout his career, he has specialized in, among other matters, gender-based violence crimes.

She has acted in defense of those accused, investigated, and charged with the crime of gender-based violence and domestic abuse, as well as representing victims of gender-based violence and habitual abuse, acting as a private prosecutor.

In criminal proceedings involving gender-based violence, hiring a law firm specializing in gender-based violence is essential. This will be one of the factors that determine the success of the proceedings.

As a lawyer specializing in gender violence in Barcelona , we answer this frequently asked question on our blog . Also, as a lawyer specializing in gender violence in Barcelona , if you need any additional information, please don’t hesitate to contact us by phone or email.