Gender Violence Defence: Strategies Against False Accusations

The Organic Act 1/2004 on Comprehensive Protection Measures against Gender Violence (Ley Orgánica 1/2004) marked a turning point in Spanish criminal law. Its goal was a worthy one: to protect women from structural violence. However, more than two decades on, day-to-day forensic practice shows us a complex reality in which the "automatic" application of precautionary measures can violate fundamental rights. As criminal lawyers specialising in gender-based violence, we offer this comprehensive guide for navigating a process in which your liberty, your reputation and your family are on the line.

What Is (and What Is Not) Gender-Based Violence?

Not every couple's argument amounts to gender-based violence. The specific offences (Arts. 153.1, 171.4 and 172.2 CP) apply where these elements are present:

1. Parties: The aggressor must be male and the victim female.
2. Relationship: They must be or have been partners (spouses, boyfriend and girlfriend), with or without cohabitation.
3. Context: Organic Act 1/2004 (Art. 1) describes this violence as a "manifestation of discrimination, the situation of inequality and the power relations of men over women", but that is the rationale of the Act, not an additional requirement the prosecution must prove: the criminal offences do not include it in their wording.

If the aggression is from a woman to a man, or between a same-sex couple, we are dealing with domestic violence, whose penalties are considerably lower and which does not trigger the automatic mechanisms of the Gender Violence Act (such as the specialised courts).

Arrest and the VioGén Protocol

When a complaint is filed, the police carry out the risk assessment (VioGén). In practice, the arrest of the person reported until he is brought before a judge is frequent, although legally neither the complaint nor the VioGén level is enough on its own: an arrest requires reasonable evidence and a precautionary purpose (Art. 492 LECrim), and for a minor offence, such as the minor insult or humiliation of Art. 173.4 CP, it is only possible if the suspect has no known address and does not post bail (Art. 495 LECrim). It is an early "dock penalty" intended to "protect just in case", but it stigmatises the suspect from minute zero.

The Protection Order: The Key Moment

Once the suspect is brought before the judge, and in any event within a maximum of 72 hours from the application, the hearing provided for in Art. 544 ter of the Spanish Criminal Procedure Act (LECrim) takes place. There the judge decides whether to issue a protection order. This order is a "package" of measures including:

• Criminal measures: Prohibition on approaching the victim (usually 300-500 metres) and on contacting her by any means. If you live together, eviction is immediate (you leave under police escort to collect basic belongings).
• Civil measures: Award of use of the family home (even if it belongs solely to the man), child custody arrangements and child support.

Because these measures are adopted quickly and on the information available at that moment, this is also where the defence has to work with the greatest precision: to argue only what is documented, to produce the paperwork of the family dispute, and to ask that the civil measures be tailored to what the file actually shows.

Instrumental Complaints: What the Official Figures Show

Start with the data rather than the cliché. The annual reports of the Spanish Prosecution Service have kept a running count since 2009 of the proceedings brought for false accusation in violence against women, and the figures are consistently minimal: a tiny fraction of all complaints. In other words, a false complaint is statistically exceptional, the rule is the truthful complaint, and under-reporting remains the majority problem. No serious defence is built on generalised suspicion towards the person who reports, and alleging falsity without a basis damages the suspect's own position before the court.

That said, every suspect is entitled to the presumption of innocence and to have the prosecution prove the facts, including where the complaint is filed in the middle of a contested divorce. The role of the defence is not to presume falsity but to check rigorously whether, in that particular file, there are objective factors supporting it — knowing that none of them is conclusive on its own:

• Earlier messages expressly announcing an intention to cause harm ("I'll ruin you", "you'll never see the kids"), which must be produced in full and in context, not as isolated screenshots.
• The timing coinciding with the announcement of a divorce, which proves nothing by itself: separation is also the moment when many victims finally decide to report.
• Material internal contradictions across successive accounts of essential facts — not mere imprecision over details, which is normal in any testimony.
• The absence of medical injury reports or witnesses does not make a complaint false — psychological violence is an offence and can be proved by other means — but it does require the prosecution to prove the facts with sufficient evidence, which is the proper ground of the right of defence.

Digital Control and Psychological Violence

Modern gender-based violence does not always leave bruises. Digital control of a partner can also be an offence. Installing spyware on her phone to access her messages or intercept her communications may amount to the offence of discovery and disclosure of secrets (Art. 197.1 CP: 1 to 4 years in prison and a fine of 12 to 24 months), and demanding her passwords or geolocating her without consent may, depending on the case, amount to coercion or stalking (Arts. 172 and 172 ter CP), alongside habitual abuse where applicable.

The Art. 416 LECrim Exemption: Can She Withdraw the Complaint?

Many complaints are filed "in the heat of the moment". The next day the couple reconciles, or she does not wish to harm him criminally. This is where Art. 416 of the Spanish Criminal Procedure Act (LECrim) comes into play: the exemption from the duty to testify. If the victim validly invokes this right at trial (she cannot if she is or has been a private prosecutor in the case, or if she agreed to testify during the proceedings after being informed of her right not to, under the exceptions introduced by Organic Law 8/2021), and there is no other evidence (witnesses, injuries), the case usually ends in acquittal for lack of prosecution evidence. Beware, however: the Prosecutor's Office may still attempt to proceed if there is other peripheral evidence.

The Offence of Habitual Abuse (Art. 173.2)

More serious than a one-off blow is the "climate of terror". Habitual abuse punishes the habitual use of physical or psychological violence, which case law links to an atmosphere of domination and fear; to assess habituality, Art. 173.3 CP requires the court to look at the number of proven acts and their temporal proximity. It carries 6 months to 3 years in prison. For the defence, it is essential to dismantle this "climate" by providing evidence of normality in the relationship (recent trips, affectionate messages, neighbours' testimony).