STS 97/2026: No Threats Offence Where Words Lack Intimidating Force
Last updated:
listIn this article
lightbulbKey Takeaways
- check_circleSTS 97/2026: acquittal for lack of substantive criminality
- check_circleArts. 171.4 and 171.6 CP require real intimidatory force
- check_circleComplainant declared she did not feel threatened
- check_circleRule of law applies equally in gender-violence cases
Quick answer
The Spanish Supreme Court, in judgment STS 97/2026 (appeal 7058/2023), upholds an acquittal for an alleged offence of minor threats in a gender-based violence context. The Chamber recalls that Articles 171.4 and 171.6 of the Criminal Code require conduct that is serious, credible and forceful enough to affect the freedom and security of the person addressed. Where the complainant herself described the words as a joke that went too far and stated that she did not feel threatened, the protected legal interest was not affected. Without that actual impact, the conduct lacks substantive criminality and a conviction cannot follow. The ruling is a key reference for the defence against charges based on words of limited weight in gender-based violence proceedings.
STS 97/2026, handed down on 6 February 2026 (appeal 7058/2023), provides a careful analysis of the threats offence in a gender-based violence context and upholds the defendant's acquittal. The ruling matters because it clearly fixes the substantive typicality threshold that words must reach before they can be brought within Articles 171.4 and 171.6 of the Criminal Code.
The protected legal interest and the need for actual impact
The threats offence protects the freedom to form one's will and personal security against expressions that generate a rational, well-founded fear that the announced harm will materialise. This dual dimension — freedom and security — is the core of the offence, and so any typicality analysis must begin by verifying whether the conduct on trial actually affected it.
The Second Chamber recalls that not every unfortunate remark, however hurtful or inappropriate, reaches that threshold. The Criminal Code reserves criminal sanction for conduct that, objectively assessed in context, is capable of generating that well-founded fear in an average person placed in the position of the passive subject.
Seriousness, credibility and force as elements of the offence
Settled Supreme Court doctrine requires three concurrent features for conduct to be criminal as a threat: seriousness, credibility and sufficient force. All three must be assessed in the light of the context in which the words were uttered: the relationship between the parties, the tone used, the circumstances of the moment and the actual reaction of the person who received them.
In STS 97/2026 the complainant stated that the words had been "a joke that went too far" and expressly declared that she "did not feel threatened". The Chamber treated that declaration as a central indicator: if the person to whom the words were addressed perceived no real threat, it is hard to conclude that the conduct had the intimidating force required by the offence.
Substantive typicality in gender-based violence proceedings
The ruling sits within the framework of gender-based violence, where Articles 171.4 and 171.6 CP set out a specific sub-type for minor threats committed by a current or former partner. This speciality increases the punitive response in recognition of the relational context, but does not remove the need to prove that the conduct reached substantive typicality.
The Supreme Court does not question the social gravity of gender-based violence or the importance of its criminal prosecution. What it clarifies is that each piece of conduct on trial must satisfy, even in this context, the elements of the offence: the minimum intimidatory intensity that justifies criminal intervention. Without it, the correct outcome is acquittal, even if the words were inappropriate or reflect a conflictual relational dynamic.
The victim's perception as a relevant piece of evidence
The victim's declaration is not the only yardstick for assessing the typicality of a threat, but it is first-rank evidence. The Chamber reasons that where the person to whom the words were addressed rules out having felt a real threat, that fact must weigh in the judge's assessment. Not because the victim holds a veto over the legal classification of the facts — which falls to the court — but because her perception is the best evidence of whether the conduct had the intimidatory capacity the offence requires.
That is precisely why the Chamber upholds the acquittal: the combination of the words used and the reaction of the person who received them reveals that the threshold of actual impact on the protected legal interest was not crossed. The conduct therefore falls outside the scope of Articles 171.4 and 171.6 CP for want of substantive criminality.
Practical implications for the defence
STS 97/2026 reinforces several lines of defence applicable in proceedings for minor threats in a gender-based violence context. The first is rigorous contextualisation of the words: the moment, the tone, the relationship between the parties and the history of their communication are all relevant to assessing whether the conduct reached the required typicality threshold.
The second is scrutiny of the victim's actual perception, which when reflected in her own declarations can be decisive. The third is the distinction between relational conflict — which may be intense and painful without being criminal — and a criminal threat, which requires actual impact on the freedom and security of the passive subject.
None of these strategies involves minimising gender-based violence as a structural phenomenon. They reflect, simply, that the principle of criminal legality requires proof of each element of the offence in every specific case, without bypassing analysis of the conduct actually on trial.
Frequently asked questions
What does the minor threats offence under Article 171.4 CP require?expand_more
The conduct must be genuinely intimidating: it must be serious, credible and forceful enough to affect the freedom and security of the person addressed. An unfortunate or heated remark is not enough. The Supreme Court has clarified that the assessment of typicality must take account of the whole context, including the actual perception of the person who received the words.
What happens if the complainant says she did not feel threatened?expand_more
It carries decisive weight in the typicality analysis. If the person to whom the words were addressed denies having felt a real threat and describes them as a joke, the protected legal interest — the freedom and security of the passive subject — is not affected. The Supreme Court held that substantive criminality is lacking in that case and a conviction under Article 171.4 CP cannot be sustained.
Does this doctrine apply equally in gender-based violence proceedings?expand_more
The Supreme Court applies it in gender-based violence proceedings too, although with particular attention to the relational context. The absence of real intimidation remains an element of the offence that must be proved. The ruling does not minimise gender-based violence as a social phenomenon; it requires each piece of conduct on trial to satisfy the elements of the provision applied.
Can the court convict even if the victim plays down the incident?expand_more
In principle yes, because the assessment of harm to the protected legal interest does not depend solely on the victim's subjective perception. However, in this case the Chamber treated the complainant's own declaration as a key indicator that the conduct did not reach the intimidatory threshold required. Without that minimum threshold of actual impact, the conduct falls outside Articles 171.4 and 171.6 CP.
gavelDo you need criminal defense in this area?
We are criminal defense lawyers specializing in gender-based violence. We act urgently to protect your rights.
Case law discussed
There is no threats offence where the words lack seriousness and intimidating force
This analysis discusses a ruling of the Criminal Chamber of the Spanish Supreme Court. You can see its summary and full citation on our case-law page.
balanceView the ruling· Judgment 97/2026arrow_forward