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 Spanish Supreme Court requires three cumulative requirements:

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: The aggression must be a "manifestation of discrimination, a situation of inequality, and power relations".

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).

The "Automatic Holding Cell": the VioGén Protocol

When a complaint is filed, the police activate the risk-assessment protocol (VioGén). In the overwhelming majority of cases, this triggers the immediate arrest of the man, who will spend the night in custody before being brought before the duty judge the following day. This happens even in cases involving petty threats or insults, where for any other offence only a statement would be taken. 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

The day after the arrest, 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 few dozen proceedings a year against close to 200,000 complaints, with an average of convictions for false accusation well below 0.1% of the total. 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. The Spanish Supreme Court has extended the concept to digital control violence. Installing spyware on a partner's phone, demanding social-media passwords or geolocating her without consent amounts to the offence of disclosure of secrets in conjunction with gender-based violence (coercion or degrading treatment). Penalties here mean actual imprisonment (over 2 years) because they affect the right to privacy.

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 invokes this right and refuses to ratify the complaint at trial, 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 creation of an unbearable atmosphere of domination and fear, regardless of how many specific assaults can be counted. It carries up 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).