By Maria Teresa Velasco Velasco Lawyers
Domestic violence is an important social problem in Spain. It is a type of physical or psychological violence which occurs within a household or an intimate relationship for example within a marriage, a family or cohabitation or even when dating. Domestic violence has many forms, including physical aggression but emotional abuse, intimidation; stalking and depravation of freedom are all forms of domestic violence.
Even though the victims of domestic violence are predominantly women, children and elderly people are vulnerable and can also be victims. Men can be victims but this is less common.
Between 2003 and 2010, 545 women died as victims of domestic violence. It is very difficult to estimate the magnitude of the problem as less than 10% of physical domestic aggressions are reported. The number of reported cases is even lower if we consider psychological abuse. The percentage of domestic violence is particularly high within foreign resident families in Spain.
Statistics show that perpetrators have either been victims or witnesses of domestic abuse when they were children, transmitting the behavioural pattern from generation to generation. There is no typical social profile for the abusers and while 20% of them have a history of mental pathologies, 80% are “normal” with no indication of violent behaviour except within the domestic environment.
Organic law 1/2004 of 28 December
In 2004 the Spanish parliament approved organic law 1/2004 of 28th December. The law is devised to combat domestic violence and comprises of many different measures aimed at rapid protection for victims or potential victims and swiftly punishing the aggressors.
The law has different targets:
- Victim support. Creation of emergency telephone numbers with 100% availability giving the victims on the spot practical advice and psychological help. Creation of social centres for assistance of victims and their children. Free specialized juridical assistance, special economical assistance and employment help.
- Legal measures. Creation of specialised tribunals with powers for immediate action. According to the magnitude of the problem the judge will dictate estrangement measures, arrest of the aggressor or deprivation of parental rights and child custody. Increased punishment for aggressors. Any domestic violence cases will be considered criminal.
- Administrative measures. Creation of specialized corps of the Local police and the “Guardia Civil” with agents trained for dealing with domestic violence cases. Creation of the “Observatorio Nacional de Violencia sobre la Mujer” in charge of the statistical follow up, in order to analyse the effect of the new laws on Spanish society.
- Education of Spanish society. Even though this law has been criticised it is considered one of the most advanced and radical legislations of this kind within the European Union.
Law 1/2004 increased the penalties and hardened the conditions for suspension of sentence. Additionally any suspension of sentence will not prevent the perpetrator from undergoing a social rehabilitation programme and psychological therapy. Resistance or lack of cooperation while in rehabilitation or therapy will mean the cancellation of the suspension and the full application of the sentence. A suspension of custody, patria potestad, and foster care will always be applied in cases where there are minors in the family.
The prison sentence can be turned into community work at the Judge’s discretion.
Physical aggressions with injuries will be punished with a prison sentence of two to 5 years, which will be heightened for:
- Usage of weapons or dangerous objects
- Premeditation or special cruelty
- If the victim is disabled or less than 12 years old
- If there is a sentimental relationship with the victim (even when not living in the same house).
- If the victim is especially vulnerable
Psychological aggression, mistreatment or any other physical aggression without injuries will be punished with prison sentences from 6 months to one year. The additional aggressions above will be taken into consideration.
Menace or coercion will be punished with prison sentences from 3 months to one year. A special aggravation of 50% of the sentence will be added if the crime was perpetrated in the presence of minors.
Other penalties for mild abuse which are not considered as a crime will be sentenced with fines.
Protection measures for the victims and their families
Depending on the situation, the Judge will be able to apply estrangement measures and may order the victim or the perpetrator to leave the family domicile. The estrangement measures will be enforced with any means that will be deemed necessary including forcing perpetrators to wear GPS locator bracelets.
In exceptional cases the judge can instruct a public or private agency to find a temporary dwelling for the victim.
The Judge can decide to prevent any form of communication between perpetrator and victim.
Apart from the suspension of custody, patria potestad, and foster care, the judge can enforce the suspension of visits to children by the perpetrator.
In any case confidentiality will be of the utmost importance and victims will be allowed to change their names as a temporary or permanent measure.
Help measures for victims
Where possible victims will have the right to flexible working hours, work time reduction and work mobility. If a domicile change results in unemployment, the time spent looking for a new employment will still be accounted for regarding pension contributions. Special help will be given for finding a new job.
If the victim has an income below 75% of the minimum professional salary, social services will help with a single payment equivalent to 6 months of unemployment benefit. If there are other circumstances involving handicapped people or dependent children that sum can be increased up to 24 months of unemployment benefit.
Victims will have priority access to social housing. In any case the judge considering the situation can apply a housing benefit payment.
What to do if you are a victim.
If you are a victim you should immediately call 016 (emergency phone for domestic mistreatment). The operators will be able to talk to you in Spanish, English or French and will give you practical and psychological assistance. The service is totally free and confidential and will not appear on telephone bills. For emergencies you should call The Guardia Civil 062 or the Police 091. If the Guardia Civil or the Police are intervening, they will immediately take measures to distance or arrest the aggressor.
It is very important to collect any evidence available like broken objects, ripped clothes and any object that served as a weapon or stained with blood.
If you go or the police take you to hospital, clearly specify that you have been assaulted and do not alter your physical appearance (like changing clothes or showering) as this could destroy evidence that could be collected by medical personnel. Get a medical report; it will be important when you report the aggressor later on.
If the aggressor insists on going with you to hospital, keep in mind that he will probably try to influence your statements at the hospital.
Report the aggressor
Past behaviour is an indicator of future behaviour; therefore if you have been assaulted once by your partner or a family member, it is likely that the pattern is going to repeat itself. Physical or psychological aggressions have no space in a civilized society therefore aggressors must be punished. Victims should not feel guilty when reporting their partner or a family member to the police. Reporting the aggressor is also a way to help him as it is the first step towards rehabilitation therapy.
Before starting the process it is important to collect all possible evidence. If the police come to your home, make sure that they collect all possible data that will support the legal procedure.
Experts say that after reporting aggression it is risky for the victim to share the same dwelling with the aggressor as the “denuncia” could trigger even more violent behaviour. It is therefore recommended to leave the common domicile until the tribunal dictates an estrangement order for the aggressor or a protection order for the victim. This is very quick and will take 72 hours at most.
Criticism of the law
Law 1/2004 has been extensively criticised.
It has been argued that men are pre-emptively considered guilty before enough evidence is collected. In a growing number of cases a false "denuncia" is used as a weapon for women preparing for divorce, trying to get child custody as well as trying to deny visitation rights for the father.
Others say that this law has been ineffective in curbing domestic violence in Spain. Statistics show that in almost 8 years of the law’s application, domestic violence in Spain is continuing unabated.