Crime of gender violence

The crime of gender violence in the Penal Code is regulated by Organic Law 1/2004, of 28 December, on Comprehensive Protection Measures against Gender Violence. Its aim is to protect women from the power and inequality exercised by men over them while they are in a relationship and after it has ended. Here we want to talk about it in depth.

What is gender-based violence?

Gender-based violence is any physical or psychological violence that a man perpetrates against a woman during or after a relationship. We are talking, for example, about threats, coercion, physical aggression and aggression against sexual freedom, etc. The fact that they live together or have lived together is irrelevant, i.e. it can occur in any couple or ex-partner even if they live in separate homes.
For an action to be considered a crime of gender violence, a series of requirements must be met. The most important is that the active subject is a man and that it is a woman who is the passive subject. But it is also mandatory that there has been or is a sentimental relationship between the two.

Who can be a victim of gender-based violence crimes?

As we have explained above in the definition of gender violence, the woman is always the passive subject of the crime, i.e. the victim. However, according to article 173.2 of the Penal Code, all these subjects are recognised as indirect victims:

• Children (descendants), parents and grandparents (ascendants) and siblings by nature, affinity or adoption of the woman.
• Persons with disabilities or minors with special protection needs whose custody, guardianship, tutorship, guardianship or foster care is in the possession of the woman and her partner.
• Any other person integrated within the nucleus of the family cohabitation.
• Persons who, due to a special situation of vulnerability, are in the custody of private or public centres.

Types of gender-based violence

To understand why the Penal Code speaks of indirect victims of gender-based violence, we must understand that a man can harm a woman in many different ways. Therefore, here we want to talk briefly about the 7 types of gender-based violence that exist:

• Physical violence. This is any direct assault that results in temporary or permanent physical harm. A beating is the best example.
• Psychological violence. This type of aggression manifests itself through the humiliation and undervaluation of the woman with the aim of submitting her will to that of the man.
• Sexual violence. This involves coercion or the use of physical force for the purpose of engaging in sexual activities against the woman's will. Marital rape, forced prostitution or forced abortion are good examples.
• Economic violence. A man may also reduce or deprive his partner and/or her offspring of economic resources for the purpose of coercing, manipulating or harming the woman's integrity.
• Property violence. Usurpation or destruction of the woman's property and assets for the purpose of dominating and intimidating her.
• Social violence. Here we are talking about the control and induction of social isolation of the woman by depriving her of the support that her family and friends can give her.
• Vicarious violence. The aggressor does not attack the woman directly, but tries to harm her through her children. Every year, unfortunately, there are new cases of men murdering their offspring in order to cause as much pain as possible to their mothers.

The difference between gender-based violence and domestic violence

Understanding the difference between the two concepts, which are often mistakenly used as synonyms, is fundamental to understanding what is considered gender-based violence and what is not.

As we have said, for the crime of gender violence to exist, there must be a sentimental relationship between a man, who is always the active subject, and a woman, who is the passive subject. However, cohabitation is not a 'sine qua non' requirement.

By contrast, the crime of domestic violence always regulates actions that take place within the family nucleus, i.e. between people who live together. Moreover, it does not have to be directed by a man against a woman.

Sentences for gender-based violence

The minimum sentence for gender-based violence, which is less than 2 years imprisonment and is indicated for non-regular minor cases, is associated with a suspended sentence provided that the offender does not reoffend within the specified period and complies with the following rules:

• Prohibition on approaching the victim and the rest of the victim's family members as determined by the judge. This also includes communication by telematic means.
• Prohibition to reside in or approach a certain place (restraining order).
• Obligation to participate in training programmes related to topics determined by the judge.

In any case, gender violence is considered an aggravating factor for any other type of associated crime regulated in the Penal Code (coercion, threats, assaults, murders, etc.), so the penalties depend on each case. We hope we have been of help in resolving your doubts in this regard.