There is some confusion regarding the concepts of gender violence and domestic violence. What are the differences between the two concepts? Domestic violence is violence that occurs within the family nucleus (for example, from parents to children, from grandparents to grandchildren, between siblings…), while gender-based violence is violence perpetrated by a man against a woman.

The Penal Code usually punishes, in a more severe way, those behaviors constituting gender violence or domestic violence. This is the case, for example, in the aggravated form of the crime of injury in art. 148.4 of the Penal Code, which punishes with a heavier penalty the injuries caused to the person who is or has been the wife of the perpetrator, or in the minor crime of threats, regulated in art. 171.5 of the Penal Code.

Gender-based violence and minor and occasional domestic violence

On the one hand, Article 153 of the Penal Code regulates cases of gender violence and minor and occasional domestic violence, punishing, with a heavier penalty, conducts that are already punished through Article 147 of the Penal Code. Specifically, the typical conduct consisting of causing to another a psychological impairment or an injury that does not require, for its healing, medical or surgical treatment, or hitting or mistreating without causing injury.

If the typical conduct of both precepts is the same, when is art. 153 of the Penal Code applicable? When the victim of the facts is part of the family nucleus of the perpetrator and, more specifically, when it is one of the following persons:

1. When the victim is or has been a wife, or a woman linked to the perpetrator by an analogous relationship of affectivity, or a particularly vulnerable person who lives with the perpetrator, the applicable penalty is imprisonment from 6 months to 1 year or community service from 31 to 80 days and, in any case, deprivation of the right to possess and carry weapons from 1 year and 1 day to 3 years. Likewise, the Judge may impose the penalty of disqualification for the exercise of parental authority, guardianship, curatorship, custody or foster care for a period of up to 5 years. This is a case of gender violence.

1. If the crime is committed against descendants, ascendants or siblings of the perpetrator or of the spouse or cohabitant, against persons integrated in the nucleus of the family cohabitation of the perpetrator, except those provided for in the previous section, or against persons who, due to their special vulnerability, are subject to custody or guardianship in public or private centers, the applicable penalty is imprisonment from 3 months to 1 year or community service from 31 to 80 days and, in any case, deprivation of the right to possess and carry weapons from 1 year and 1 day to 3 years. In addition, the judge may impose the penalty of disqualification for the exercise of parental authority, guardianship, conservatorship, guardianship or foster care for up to 3 years. This is a case of domestic violence.

In both cases, the Penal Code provides for an aggravation of the penalty (imposition of the penalty in its upper half) when the crime is committed:

1. In the presence of minors.
2. Using weapons.
3. In the common domicile or in the victim’s domicile.
4. Failing to comply with a penalty or precautionary measure of prohibition of approach.

Finally, the judge has the power to impose a lower degree of punishment, taking into account the personal circumstances of the perpetrator and the circumstances in which the criminal act took place.

Crime of habitual domestic and gender violence

The crime of habitual violence is regulated in art. 173.2 of the Penal Code and is characterized by the exercise of physical or psychological violence against a person who is or has been a spouse or a person linked to him/her by an analogous relationship of affection, against descendants, ascendants or siblings of the spouse or cohabitant, against persons integrated in the nucleus of family cohabitation, or against persons who, due to their special vulnerability, are subject to custody or guardianship in public or private centers.

This crime is applicable in cases in which the perpetrator exercises physical or psychological violence on a habitual basis against certain family members and persons who form part of the nucleus of the cohabitation. According to the Criminal Code itself, in order to appreciate habituality, the number of acts of violence and the time elapsed between such acts must be taken into account, it being irrelevant whether the violence has been exercised on the same or different victims and whether or not the acts have been the object of previous prosecution. For its part, the Supreme Court has clarified, in relation to the concept of habituality, that it is not an arithmetical problem of the minimum number of individualized behaviors that must be added up to reach a certain number, but rather a climate of domination or intimidation, of imposition and systematic contempt towards the victim (STS no. 684/2021, of September 15).

This behavior is punishable with imprisonment from 6 months to 3 years and deprivation of the right to possess and carry weapons from 3 to 5 years. In addition, the judge may impose the penalty of special disqualification for the exercise of parental authority, guardianship, conservatorship, guardianship or foster care for a period of 1 to 5 years, as well as the measure of probation. All this, without prejudice to the penalties corresponding to the crimes in which the acts of physical or psychological violence have been committed.

On the other hand, the Criminal Code provides for a series of aggravated modalities, which entail the imposition of the aforementioned penalties in the upper half, when any of the acts of violence are perpetrated in the presence of minors or using weapons, when the acts take place in the common home or in the victim’s home, or when any of the acts of violence are committed in breach of a sentence or a precautionary or security measure prohibiting approach or communication with respect to the victim.

ILLEGAL TRAFFICKING AND TRANSPLANTATION OF HUMAN ORGANS

Article 156 bis of the Penal Code punishes the promotion, facilitation, publicity and execution of trafficking in human organs. If the victim is a living person, the penalty is imprisonment for 6 to 12 years, while, if the victim is a deceased person, the penalty is imprisonment for 3 to 6 years.

When is it considered illegal?

For the purposes of this precept, the Penal Code contains a list of behaviors that constitute organ trafficking:

• Unlawful removal or procurement of another’s human organs, which shall be unlawful if carried out without the free, informed and express consent of the living donor, without the authorization of the deceased donor or if, in exchange for the removal, any remuneration (beyond the reimbursement of expenses or loss of income derived from the donation) is requested or received by the donor or a third party.
• Preparation, preservation, storage, transportation, transfer, reception, importation or exportation of illicitly harvested organs.
• Use of illicitly harvested organs for the purpose of transplantation or for other purposes.

The Penal Code also punishes persons who, for their own benefit or for the benefit of others:

1. Soliciting or receiving, by themselves or through an intermediary, retribution of any kind, or accepting an offer or promise for proposing or recruiting an organ donor or recipient.
2. Offer or deliver, by themselves or through an interposed person, remuneration of any kind to medical personnel, public officials or private individuals on the occasion of the exercise of their profession or position in clinics, establishments or offices, with the purpose of carrying out or facilitating the illicit extraction or procurement or the implantation of illicitly extracted organs.

The recipient of the organ who consents to the transplant knowing its illicit origin is punished, but with a penalty lower by one or two degrees.

Aggravated modalities

The previously described facts are punished with a higher penalty if the victim’s life or integrity is seriously endangered, if the victim is a minor or a particularly vulnerable person, if the perpetrator of the facts is a public official or belongs to a criminal organization or group dedicated to this type of activities….

What is the criminal liability of the legal person?

Article 156 bis, paragraph 7 of the Penal Code provides that legal persons may be criminally liable for the crimes of trafficking and illegal transplantation of human organs. The applicable penalty is a fine of three to five times the profit obtained, and the judge may also impose additional penalties, such as dissolution, suspension of activities, closure of premises, prohibition of future activities, disqualification from obtaining public subsidies and aid, and judicial intervention.