The Offence of Domestic Violence: A Legal Guide to Art. 173.2 CP
In this article
Key Takeaways
- Article 173.2 CP
- Habituality
- Restraining order
- Child-to-parent violence
The offence of domestic violence (Art. 173.2 CP) punishes with imprisonment of six months to three years anyone who habitually inflicts physical or psychological violence on members of their family or household. Its scope is broader than gender violence: it also protects men assaulted by their partners, parents assaulted by their children and siblings. Habitual conduct does not require a set number of assaults, but proof of a permanent state of aggression, and it is usually accompanied by a protection order even before trial.
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The offence of domestic violence (Art. 173.2 CP) protects peace within the family unit against physical or psychological aggression. It is often confused with gender violence, but its scope is far broader: it protects men assaulted by their partners, parents assaulted by their children, and siblings. As criminal lawyers experienced in the offence of domestic violence, we break down the key points of this offence.
Domestic Violence vs. Gender Violence
The distinction is vital and lies in the victim:
- Gender Violence: exclusively where the aggressor is a man and the victim is a woman who is or has been his partner.
- Domestic Violence: any other aggression within the family sphere (e.g. woman against man, child against parent, grandchild against grandparent).
The Concept of Habituality (Art. 173.2 CP)
The Criminal Code punishes "habitual" violence more severely. This does not require a mathematical number of assaults (e.g. 3 reports), but proof of a permanent state of aggression. The Supreme Court looks for a "climate of terror" in the home rather than a sum of isolated blows.
Penalties and Consequences
The penalty ranges from 6 months to 3 years in prison. But the most immediate measure is the Protection Order: the judge can order the aggressor to leave the home and prohibit them from approaching their children or relatives even before the trial.
Criminal Defence Strategies
In the family sphere, instrumental reports (to gain an advantage in divorces or custody) are not unknown. The defence must focus on:
- The context of the conflict: proving that it is a one-off mutual argument and not a relationship of domination or habitual violence.
- Peripheral testimony: neighbours, teachers or relatives who can attest to the normality of the household.
- Psychological expert reports: to rule out psychological harm consistent with habitual abuse.
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Frequently asked questions
What does Article 173.2 of the Criminal Code punish?
It punishes anyone who habitually inflicts physical or psychological violence on members of their family or household (spouse or partner, former spouse or former partner, descendants, ascendants, siblings, minors or vulnerable people living with them or in their care). The penalty is imprisonment of six months to three years, deprivation of the right to possess weapons and, where applicable, disqualification from parental authority or guardianship.
What is understood by habituality?
Under Art. 173.3 CP, habituality is assessed by reference to the number of proven acts of violence and their temporal proximity, regardless of whether the violence was inflicted on the same or on different victims and regardless of whether the acts were previously prosecuted.
What is the difference between domestic violence and gender violence?
Domestic violence under Art. 173.2 protects the whole family and household circle. Gender violence refers specifically to violence inflicted by a man on a woman who is or has been his partner, and has its own offences (for example, one-off ill-treatment under Art. 153.1 CP). The same facts can be assessed from either perspective depending on who the victim is.
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