Gender-based violence in the Penal Code: Definition, penalties, and legal treatment

Gender-based violence is one of the most serious manifestations of inequality and an assault on the fundamental rights of women. The Spanish Penal Code establishes a specific legal framework to criminally prosecute these acts, distinguishing them from other common crimes and granting them enhanced legal treatment.

What is considered gender-based violence under the Penal Code?

The crime of gender-based violence is defined when a man exerts physical or psychological violence against a woman with whom he has or has had an emotional relationship. This criminal classification considers not only the specific aggression but also the structural context of domination, control, or subjugation that motivates it.

The regulation is distributed across several articles of the Penal Code, especially:

• Article 153 CP: regulates the minor offense of gender-based violence (assault or mistreatment without medical injury).
• Article 148.4 CP: provides an aggravated form of injury when the victim is or has been the perpetrator’s partner.
• Article 173.2 CP: contemplates the crime of habitual violence when aggressions occur repeatedly.

Penalties established for the crime of gender-based violence

The criminal treatment varies depending on the severity of the facts and the presence of aggravating circumstances. Penalties may include:

• Minor offense of gender-based violence (Art. 153 CP):
  • Imprisonment from 6 months to 1 year or community service from 31 to 80 days.
  • Prohibition on owning weapons for 1 to 3 years.
  • Disqualification from exercising parental authority, guardianship, or legal custody (up to 5 years).
    
    
• Habitual violence (Art. 173.2 CP):
  • Imprisonment from 6 months to 3 years.
  • Withdrawal of the right to carry weapons (3 to 5 years).
  • Supervised freedom measures and family disqualifications.

Additionally, the Penal Code provides specific aggravating factors that can increase penalties, such as:

• Committing the crime in the presence of minors.
• Using weapons or dangerous objects.
• Committing the acts in the victim’s home.
• Violating a protection measure or prior court order.

What requirements are assessed to establish the crime of gender-based violence?

The competent court must analyze:

• The existence of a current or past emotional relationship between the perpetrator and the victim.
• The intentionality of domination or subjugation in the aggressor’s behavior.
• The nature of the aggression (physical, verbal, psychological) and its objective severity.
• The habitual nature of the conduct (in cases applying Art. 173.2).

Judges also consider the credibility of the victim’s testimony, the presence of witnesses, medical or psychological reports, and any contextual evidence demonstrating a pattern of violence.

Protective measures in criminal proceedings for gender-based violence

Once a complaint is filed, the court may adopt precautionary measures even before the trial takes place:

• Restraining orders.
• Prohibition of communication with the victim.
• Suspension of visitation or custody rights.
• Withdrawal of weapons possession.
• Expulsion from the shared home.

These measures seek to protect the victim and prevent new risk situations during the criminal process.

How are these crimes processed? Criminal procedure

The criminal procedure in these cases includes:

• Summary trial, if the requirements of Article 795 of the Criminal Procedure Law (LECrim) are met.
• Abbreviated procedure in cases of greater complexity or if it is not urgent.
• Before the Violence Against Women Court, which has exclusive jurisdiction over these crimes.

If you find yourself in a situation where you need legal advice regarding a gender-based violence crime and require the assistance of a criminal lawyer, at NIETO ENRÍQUEZ ABOGADOS PENALISTAS we have a team of specialized criminal lawyers ready to protect your interests and assist you with everything you need.