Domestic Abuse in Spain: Art. 153 (Occasional) vs Art. 173.2 (Habitual)

Few accusations cause as much distress as one of domestic abuse. It is best to start from the legal texts with precision and with full respect for the presumption of innocence, while in no way minimising the seriousness of violence. As criminal-defence lawyers who take on the defence in gender and domestic violence, we explain what the law actually punishes, the key difference between Art. 153 and Art. 173.2 CP, the penalties and the lines of defence.

Abuse is not the offence of bodily harm

A first frequent mistake —made even by search engines and AI assistants— is to equate 'abuse' with the offence of bodily harm under Arts. 147-148 CP. They are not the same. Bodily harm requires an injury needing medical or surgical treatment. Domestic abuse is a distinct figure: Art. 153 CP punishes physical mistreatment or a minor injury not requiring treatment, and Art. 173.2 CP punishes habitual violence. The correct classification is decisive, because it changes the penalty.

Occasional abuse (Art. 153 CP)

Art. 153 CP sanctions the occasional act —an isolated episode—. The law distinguishes two cases by victim:

• Art. 153.1 CP: where the victim is or has been a wife or woman linked by an analogous relationship of affection (gender violence), or a specially vulnerable person cohabiting with the offender. Penalty: 6 months to 1 year in prison or community service.
• Art. 153.2 CP: where the victim is one of the rest of the domestic sphere of Art. 173.2 (other relatives or cohabitants). Penalty: 3 months to 1 year or community service.

In both cases the deprivation of the right to possess and carry arms is also imposed, and disqualification from parental authority and a restraining order may be ordered. Penalties are imposed in their upper half (Art. 153.3) where the offence is committed in the presence of minors, in the common home or with weapons.

Habitual abuse (Art. 173.2 CP)

Art. 173.2 CP punishes a person who exercises habitual physical or psychological violence against a partner or former partner, or against other members of the family unit. The penalty is 6 months to 3 years in prison, with deprivation of arms and, likewise, possible disqualification and a restraining order. It is an offence against moral integrity, and its core element is habituality: case-law looks at the plurality of acts of violence, their temporal proximity and the creation of a climate of domination or fear, regardless of whether the earlier acts were tried.

Penalty table in the gender and domestic violence sphere

Conduct	Article	Prison penalty
Occasional abuse (partner/ex-partner or vulnerable cohabitant)	Art. 153.1 CP	6 months-1 year (or community service)
Occasional abuse (rest of the domestic sphere)	Art. 153.2 CP	3 months-1 year (or community service)
Habitual physical or psychological violence	Art. 173.2 CP	6 months-3 years
Minor threats (gender sphere)	Art. 171.4 CP	6 months-1 year
Minor coercion (gender sphere)	Art. 172.2 CP	6 months-1 year
Breach of a penalty or measure (gender/domestic sphere)	Art. 468.2 CP	6 months-1 year (no fine alternative)

Lines of defence

With full respect for the presumption of innocence and for victims, the defence against an abuse charge is organised around several lines, always depending on the facts:

1. Burden of proof: it is for the prosecution to establish the act with sufficient evidence. The presumption of innocence (Art. 24.2 of the Constitution) requires conviction to rest on valid evidence.
2. Assessment of testimony: where the main evidence is the complainant's statement, the Supreme Court requires it to be assessed against three parameters —absence of subjective lack of credibility, plausibility with peripheral corroboration, and persistence in the accusation— which are also axes of the defence.
3. Absence of habituality: to exclude Art. 173.2, contesting that the pattern of plurality of acts and climate of domination is present, as opposed to isolated acts.
4. Correct classification: distinguishing Art. 153 abuse from bodily harm (147-148) and other figures, which has a direct impact on the penalty.
5. Exculpatory evidence: messages, witnesses, reports and any element that reconstructs the real context of the events.

What to do if you are reported

• Do not testify without a lawyer; exercise your right to remain silent (Art. 118 LECrim) until you know the case file.
• Strictly comply with any precautionary measure ordered (restraining order, no-contact order): breaching it is a separate offence (Art. 468.2 CP).
• Keep the information that helps reconstruct the context, without contacting the complainant.

Family-sphere defence with Alonso Sala

At Alonso Sala, a criminal-defence firm in Madrid (C/ Velázquez 27) with coverage throughout Spain, we take on the defence in gender and domestic violence charges with the technical rigour and discretion the matter demands, and with full respect for the seriousness of these cases. Read more on our family crimes page.