Vicarious violence is included in the Penal Code: the key points of the Spanish government's new law

MadridThe Council of Ministers approved this Tuesday in the first round of voting a draft organic law aimed at protecting women victims of vicarious violence, that is, violence that occurs within the family context. The main change is that a specific crime will be created in the Penal Code. The bill must pass the required reports, be approved in the second round, and go through Congress, so the approval process will still be long. These are the key points included in the draft bill promoted by the Minister of Equality, Ana Redondo:

What is vicarious violence?

The definition is stipulated in the Organic Law Against Gender Violence of 2004, approved during the government of José Luis Rodríguez Zapatero. Vicarious violence is violence perpetrated against a woman by a partner or former partner through an intermediary. This can include children, offspring, disabled adults in custody, ascendants, siblings, or the victim's current partner.

New crime in the Penal Code

The Penal Code will include a new Article 173 bis to penalize vicarious violence with between six months and three years in prison. There will be a generic type referring to domestic violence against persons who are not necessarily women, and an aggravated type if the crime is committed in the context of gender-based violence, which will impose sentences at the highest level. This distinction is made because stipulating the crime solely as violence against women would be "discriminatory," according to the Constitutional Court's doctrine, which is why the legal technique of the aggravated type is used.

The Bretón Case

An accessory penalty is introduced in Article 70 of the Penal Code because it also covers situations such as the José Bretón case. It refers to the controversy over the publication of a book which recounted the murder of two younger brothers by their father. The purpose of this change is to prohibit the publication of information and documents by the perpetrator that directly or indirectly cause pain to the victims. The objective, Redondo explained, is to anticipate a solution to the conflict of rights that arises in such a case between the freedom of creation and the moral integrity of the victims.

Listen to the minor regarding custody

Article 92.6 of the Civil Code has been amended to establish that, as a general rule, minor children, as well as adults with disabilities, must be heard when deciding on custody. Exceptionally, this will not be the case in cases where it is "impossible" to hear the minor or "directly interferes with the best interests of the minor," Redondo explained.

Changes have also been introduced in Article 94 to strengthen the foundation for establishing visitation, communication, or stay arrangements when the parent has an open criminal case for domestic or gender-based violence. Catalonia, however, has its own Civil Code, and for these changes to be effective, they will also have to be added to the Catalan law. Legal sources point out that the Catalan Civil Code already includes vicarious violence as a form of gender-based violence, and therefore the biggest change in the civil sphere would be to hear minor children before deciding on custody. Furthermore, the draft bill approved this Tuesday amends the Organic Law on the Legal Protection of Minors and the Civil Procedure Law to expressly include that a minor will be considered a situation of risk of being exposed to vicarious violence.

Specific training for judges

Finally, the regulation also provides for changes to the Organic Law of the Judiciary so that the General Council of the Judiciary will require judges to provide specific training in vicarious violence, as is already the case with gender-based violence. This will be an "indispensable element for access to and promotion within the judicial career," the minister stated.

The head of the No. 1 Court for Violence against Women in Barcelona, ​​Carlos Pascual Alfaro, welcomes the initiative because it "fills a gap that existed." In a conversation with ARA, he comments that until now, perpetrators were punished for the murder of minors, but the legal system did not sufficiently address the harm caused to women when a partner or ex-partner kills their child, or harm to a child due to abuse that does not amount to a crime, for example.