The crime of habitual abuse is regulated in Article 173.2 of the Spanish Penal Code. This crime protects the legal right of moral integrity , understood as the dignity and inviolability of the person.
The law covers not only physical or psychological attacks, but also any intervention that affects a person without their consent.
Moral integrity is the legally protected right in this crime. Through this approach, the Penal Code safeguards dignity and respect for the person, prohibiting any type of continued abuse.
The crime of habitual abuse punishes the conduct of those who repeatedly subject another person to physical or psychological aggression within the context of their family or cohabitation relationships.
This abuse may consist of physical violence , with its many manifestations, such as blows that cause injury, physical abuse, sexual violence, or even completed homicide.
In these cases, Article 173.2 of the Penal Code itself provides that acts of violence will be punished individually, when they constitute a crime, along with the crime of habitual abuse.
Abuse can also consist of psychological violence , which can be carried out through coercion, threats, humiliation, or harassment. However, according to Supreme Court Ruling 477/2009, of November 10, neglect and malnutrition of dependents do not constitute psychological violence, even though such conduct constitutes a family support offense under Article 226 of the Criminal Code.
The Penal Code only punishes the crime of habitual abuse when this violence is carried out against a specific group of people with special ties to the perpetrator.
Specifically, this crime can only be punished when committed against the perpetrator’s spouse, or a person linked to the perpetrator by a similar emotional relationship, against the perpetrator’s descendants, ascendants, or siblings, whether their own or the spouse’s, or against disabled persons in need of special protection who are subject to their authority, guardianship, curatorship, foster care, or de facto custody.
At the same time, the crime of habitual abuse can also be committed against any other person within the family unit.
Finally, it is important to note that the Penal Code provides for the possibility of imposing a higher sentence in certain cases. These aggravated types apply when acts of violence are carried out in the presence of minors, through the use of weapons, or take place in the common home or at the victim’s home.
Traditionally, Supreme Court jurisprudence has understood the concept of habitual behavior as requiring a certain number of violent acts, drawing a parallel with the habitual behavior provided for in Article 94 of the Criminal Code. Specifically, more than two violent acts were required, with habitual behavior arising after the third.
However, this interpretation has been abandoned by the most recent criminal case law. Thus, Supreme Court Ruling 684/2021, of September 15, establishes that habitual behavior does not consist of the number of violent acts, but rather in the relationship between perpetrator and victim, and the permanence of the violent treatment.
In this sense, the concept of habitual nature of this crime relates to the perpetrator’s particular cruelty, who inflicts prolonged abuse within his or her own family home, regardless of the individual acts. This, insofar as its continued duration generates double harm to the victim, justifying its punishment as a stand-alone crime.
Article 173.2 of the Penal Code provides for the crime of habitual abuse with a prison sentence of six months to three years, as well as a penalty of deprivation of the right to own and carry weapons for three to five years.
In turn, when the Judge or Court deems it appropriate for the interest of the minor or disabled person, the penalty of special disqualification from exercising parental authority, guardianship, curatorship, custody, or foster care for one to five years may be imposed.
On the other hand, it is necessary to highlight that article 57.2 of the Penal Code obliges Judges to impose, for the crime of habitual abuse, a prohibition on approaching the victim or those relatives or other persons determined in the sentence, as well as approaching their home, their workplace and any other place frequented by them, for a period that may not exceed five years.
Likewise, with respect to children, the visitation, communication, and stay arrangements agreed upon in the civil judgment will be suspended until the sentence is fully served.
Since its amendment in 2022, the Organic Law on Comprehensive Protection Measures against Gender-Based Violence has established a catalog of specific rights for victims of this type of crime. Specifically, the following are highlighted:
Victims of gender-based violence have the right to receive all information related to their protection and safety, and the rights and assistance provided by law, without having to file a private prosecution.
Victims of these types of crimes also have the right to social services for care, emergency, support, shelter, and comprehensive recovery. These services will include, in particular, psychological care, social support, follow-up of their complaints, educational support for the family unit, preventive training in equality values, and support for training and job placement.
All victims of gender-based violence, as well as their descendants, have the right to health care, with special psychological and psychiatric attention, and to follow-up of their health status until they fully recover.
Sugrañes has a team of criminal lawyers specializing in gender-based violence, having participated in numerous cases involving the crime of abuse.
We defend those under investigation or accused of habitual abuse before courts throughout the country.
Likewise, we represent victims of abuse by acting as private prosecutors in order to obtain a conviction against their abuser.
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