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

Spain’s Criminal Code (Código Penal, CP) punishes domestic abuse in two provisions: Art. 153 CP covers occasional abuse within the family, such as a blow or a minor injury, even a one-off episode, and Art. 173.2 CP, habitual physical or psychological violence. As criminal lawyers who defend clients in gender-based and domestic violence cases, we explain what each provision punishes and what a conviction entails.

If you have been reported for domestic abuse: what it means and what happens next

Both are less serious offences (delitos menos graves) and public offences: the Public Prosecutor’s Office (Fiscalía) pursues them of its own motion, so the case goes on even if the complaint is withdrawn, and a conviction always brings an order not to approach the victim (Art. 57.2 CP). First, do not make a statement without a lawyer and comply with any measure you are notified of; if you do not understand Spanish, you are entitled to an interpreter under Art. 118.1.f of the Criminal Procedure Act (LECrim).

Text of Arts. 153 and 173.2 to 173.4 CP (unofficial translation)

Below is our unofficial English translation of the text in force, with the Spanish numbering; only the Spanish version published in the Boletín Oficial del Estado (BOE), Spain’s official gazette, is authoritative. Art. 153 CP, as worded by Organic Law 1/2015, in force since 1 July 2015:

153.1. Anyone who, by any means or procedure, causes another person psychological harm or an injury of lesser severity of those provided for in Art. 147.2, or strikes or physically mistreats another person without causing injury, where the victim is or has been his wife, or a woman who is or has been linked to him by an analogous emotional relationship even without cohabitation, or a particularly vulnerable person who lives with the offender, shall be punished with imprisonment of six months to one year or community service of thirty-one to eighty days and, in all cases, deprivation of the right to possess and carry weapons for one year and one day to three years, and, where the judge or court considers it appropriate in the interest of the minor or of the person with a disability in need of special protection, disqualification from exercising parental authority, guardianship, curatorship, custody or foster care for up to five years.

153.2. If the victim of the offence provided for in the preceding paragraph is any of the persons referred to in Art. 173.2, other than those covered by the preceding paragraph of this article, the offender shall be punished with imprisonment of three months to one year or community service of thirty-one to eighty days and, in all cases, deprivation of the right to possess and carry weapons for one year and one day to three years, and, where the judge or court considers it appropriate in the interest of the minor or of the person with a disability in need of special protection, disqualification from exercising parental authority, guardianship, curatorship, custody or foster care for six months to three years.

153.3. The penalties provided for in paragraphs 1 and 2 shall be imposed in their upper half where the offence is committed in the presence of minors, or using weapons, or takes place in the shared home or in the victim’s home, or is committed in breach of a penalty of those provided for in Art. 48 of this Code or of a precautionary or security measure of the same nature.

153.4. Notwithstanding the preceding paragraphs, the judge or court, giving reasons in the judgment, may impose the penalty one degree lower in view of the personal circumstances of the offender and those surrounding the commission of the act.

Art. 173.2 to 173.4 CP:

173.2. Anyone who habitually exercises physical or psychological violence over a person who is or has been their spouse, or over a person who is or has been linked to them by an analogous emotional relationship even without cohabitation, or over the descendants, ascendants or siblings by birth, adoption or affinity, their own or those of their spouse or cohabiting partner, or over minors or persons with a disability in need of special protection who live with them or who are subject to the parental authority, guardianship, curatorship, foster care or de facto custody of the spouse or cohabiting partner, or over a person protected by any other relationship through which they are part of the core of their family life, as well as over persons who, owing to their particular vulnerability, are held in custody or care in public or private institutions, shall be punished with imprisonment of six months to three years, deprivation of the right to possess and carry weapons for three to five years and, where applicable, where the judge or court considers it appropriate in the interest of the minor or of the person with a disability in need of special protection, special disqualification from exercising parental authority, guardianship, curatorship, custody or foster care for one to five years, without prejudice to the penalties that may correspond to the offences in which the acts of physical or psychological violence have materialised.

The penalties shall be imposed in their upper half where one or more of the acts of violence are committed in the presence of minors, or using weapons, or take place in the shared home or in the victim’s home, or are committed in breach of a penalty of those provided for in Art. 48 or of a precautionary or security measure or prohibition of the same nature.

In the cases referred to in this paragraph, a measure of supervised release may also be imposed.

173.3. In order to assess the habituality referred to in the preceding paragraph, regard shall be had to the number of acts of violence that are proven, as well as to their proximity in time, regardless of whether that violence has been exercised over the same victim or over different victims among those covered by this article, and of whether or not the violent acts have been tried in earlier proceedings.

173.4. Anyone who causes a minor insult or unjust humiliation, where the offended party is one of the persons referred to in Art. 173.2, shall be punished with permanent location of five to thirty days, always at a home different from and away from that of the victim, or community service of five to thirty days, or a fine of one to four months, the latter only where the circumstances set out in Art. 84.2 are present.

The same penalties shall be imposed on anyone who addresses another person with expressions, behaviour or propositions of a sexual nature that create for the victim an objectively humiliating, hostile or intimidating situation, without amounting to other more serious offences.

The offences defined in the two preceding paragraphs shall be prosecuted only upon a complaint by the aggrieved person or their legal representative.

Abuse is not the offence of bodily harm

The offence of bodily harm under Arts. 147 and 148 CP requires an injury needing medical or surgical treatment beyond first medical attention. Outside the family, a minor injury or a blow without injury is only a minor offence (delito leve), punished with a fine and prosecuted only on the victim’s complaint (Art. 147.2 to 147.4 CP); within it, Art. 153 makes the same conduct a less serious, public offence. If treatment is needed, Art. 147.1 applies, and Art. 148 allows two to five years in prison if the victim is or has been the offender’s wife or female partner, or a particularly vulnerable person living with him.

Occasional abuse (Art. 153 CP): a single episode is enough

One act is enough: psychological harm (menoscabo psíquico), a minor injury that needs no treatment, or a blow or physical mistreatment (maltrato de obra) without injury. The penalty depends on the victim:

• Art. 153.1: the offender’s current or former wife or female partner, even if they never lived together (what Spanish law calls gender-based violence, violencia de género), or a particularly vulnerable person who lives with him. Prison of six months to one year.
• Art. 153.2: the other persons listed in Art. 173.2, such as a male partner or ex-partner, or the children. Prison of three months to one year. On parents who hit their children, see whether smacking your child is a crime in Spain.

In both cases, community service may replace prison. The circumstances in Art. 153.3 take the penalty to its upper half, and Art. 153.4 lets the court, giving reasons, impose the penalty one degree lower. The Constitutional Court upheld the higher penalty in Art. 153.1 (STC 59/2008, of 14 May). Arts. 171.4 and 172.2 CP impose that same penalty for minor threats and minor coercion against the same victims.

Habitual abuse (Art. 173.2 CP): a pattern of violence

Art. 173.2 punishes habitual physical or psychological violence against a current or former partner, relatives such as children, parents or siblings, other members of the household and vulnerable people in care institutions. It is an offence against moral integrity, punished with six months to three years in prison, and the court may add supervised release (libertad vigilada).

Art. 173.2 applies «sin perjuicio» (without prejudice to) the penalties for each act of violence: every proven assault is also punished separately and the penalties add up (concurso real). Paragraph 4 adds a minor offence, prosecuted only on complaint, for a minor insult or unjust humiliation of those persons.

How habituality is proven (Art. 173.3 CP)

The law sets no minimum number of episodes: it looks at the number of proven acts and their proximity in time, even if they affected different victims (the partner and the children, for example) or were already tried in other proceedings. The courts also consider whether a climate of domination or fear was created. This is the core of the defence: dates, intervals, contradictions and lack of corroboration can reduce an alleged pattern to isolated incidents.

Comparison table: occasional abuse (Art. 153) vs habitual abuse (Art. 173.2)

Restraining order, weapons and parental authority: what comes with a conviction

Every conviction carries a mandatory order to stay away from the victim (Arts. 57.2 and 48.2 CP), even if the victim does not ask for it: up to five years or, with prison, one to five years longer than the prison term, served at the same time (Art. 57.1). The Constitutional Court upheld this mandatory order (STC 60/2010, of 7 October). If the order also extends to the children, it suspends the contact, communication and stay arrangements recognised in a civil judgment until the penalty has been served in full (Art. 48.2), according to the Public Prosecutor’s Office (Circulars 2/2004 and 4/2005 of the Fiscalía General del Estado). If it does not, contact can still be suspended by other routes: the protection order (Art. 544 ter.7 LECrim) and Art. 94 of the Civil Code. Loss of the right to possess weapons is automatic; disqualification from parental authority, discretionary. Any contact contrary to the order, even with the victim’s consent, may be a breach of the order under Art. 468.2 CP, punishable with six months to one year in prison. More in our complete guide to restraining orders.

Which court investigates and how the case proceeds

If the victim is the suspect’s current or former wife or female partner, the case goes to the Violence against Women Section (Sección de Violencia sobre la Mujer) of the Court of Instance (Art. 89.5.a of the Organic Law of the Judiciary, LOPJ), which also takes offences against the children if there has been an act of gender violence; otherwise, to the Investigating Section or, with a child victim and where one exists, to the Section for Violence against Children and Adolescents (Art. 89 bis LOPJ). With a police report (atestado) and an arrest or a summons to the duty court, the fast-track procedure (juicio rápido, Arts. 795 ff. LECrim) can apply, and the hearing on a protection order must be held within seventy-two hours at most (Art. 544 ter.4 LECrim).

A victim who is the accused’s partner or relative may rely on the exemption from testifying in Art. 416 LECrim, except, among other cases, when they are or have been a party to the case as private prosecutor. A plea agreement (conformidad) reduces the penalty by one third in the cases of Art. 801 LECrim, but means accepting a conviction with a restraining order.

Can the sentence be suspended? The rules of Art. 83.2 CP

A prison sentence can be suspended if the requirements of Art. 80 CP are met: essentially, a first offence, a penalty of no more than two years and civil liability paid or undertaken. Where the victim is the convicted person’s current or former wife or female partner, Art. 83.2 always imposes three conditions: not approaching or communicating with her (rule 1), not residing in or going to certain places (rule 4) and attending a training programme (rule 6). A serious or repeated breach obliges the court to revoke the suspension (Art. 86.1.b). More on when a suspended sentence is revoked.

When do occasional and habitual abuse become time-barred?

Both become time-barred after five years (Art. 131 CP), as none of their penalties exceeds five years. The minor humiliation offence in Art. 173.4 does so after one year. For habitual abuse, time runs from when the conduct ended (Art. 132.1). If the victim was a minor, the period starts when they turn eighteen for Art. 153 and thirty-five for Art. 173.2, the latter only for acts committed on or after 25 June 2021. See our table of limitation periods.

Lines of defence

1. Burden of proof: the presumption of innocence (Art. 24.2 of the Constitution) requires the prosecution to prove each episode with valid evidence.
2. Testimony: if the main evidence is the complainant’s statement, the court examines its credibility and peripheral corroboration under the criteria systematised by the Supreme Court in STS 308/2026. The evidence is decided at trial: in a cassation appeal on a point of law, the Supreme Court respects the facts found proven (STS 202/2026).
3. Habituality: without a pattern of acts close in time, there is no Art. 173.2 offence.
4. Classification: distinguishing Art. 153 from bodily harm under Art. 147 and, where appropriate, asking for the penalty one degree lower.
5. Evidence for the defence: complete conversations, witnesses and medical reports.

What to do (and what not to do) if you are reported

• Do not make a statement without a lawyer: you have the right to remain silent (Art. 118.1 LECrim).
• Comply with any measure from the moment you are notified, even if the other person seeks you out.
• Do not contact the complainant, either through third parties or on social media.
• Keep messages, location data and documents without altering them.
• Coordinate the criminal case with any family proceedings if there are children.

Family-sphere defence with Alonso Sala

At Alonso Sala, a criminal law practice in Madrid (C/ Velázquez 27) with more than 15 years of experience, we take on the defence in domestic abuse and gender violence cases with rigour and discretion. You can call us on +34 91 078 65 74 for an initial assessment of your case.