Organic Law 1/2004: Gender Violence and Criminal Changes

Organic Law 1/2004, of 28 December, on Comprehensive Protection Measures against Gender Violence is, without doubt, one of the reforms with the greatest impact on the Spanish criminal justice system in recent decades. It is not a purely criminal statute: it is a comprehensive law covering educational, social, health, employment and procedural measures. But its criminal component amended the Criminal Code (CP) profoundly and created a specialised jurisdiction. As a firm dedicated exclusively to criminal law, we explain what changed, why, and above all what it means today for anyone being investigated or prosecuted, as well as for those acting as victims or injured parties. You can review the full picture of recent legislative changes on our criminal law reforms page.

What the reform changed and why

The starting point of Organic Law 1/2004 was a finding the legislator wanted to address specifically: violence by a man against a woman who is or has been his partner involves, in the legislator's view, a special gravity and an element of domination that justified a reinforced criminal and procedural response. The law was passed with the declared aim of offering comprehensive protection to victims: not only to punish, but to prevent, protect and assist.

In strictly criminal terms, the reform chose a particular technique: to aggravate certain conduct that was already criminalised where the victim is or has been the wife of, or a woman bound by a similar relationship of affection to, the offender, even without cohabitation. In general, it did not create wholly new offences but introduced aggravated forms within pre-existing figures (bodily harm, occasional ill-treatment, threats and coercion), raising the punitive response in that partner context. Alongside this, it set up a specialised jurisdiction and a victim protection system. The common purpose of all these measures was to make visible and reinforce the response to this form of violence.

The provisions affected (Arts. 148, 153, 171 and 172 CP)

The criminal reform of Organic Law 1/2004 focused on four provisions of the Criminal Code, all of them dealing with conduct frequent in the context of a relationship. The common denominator is the aggravation of the penalty where the victim is or has been the wife of, or a woman bound by a similar relationship of affection to, the offender:

• Article 148 CP (aggravated bodily harm). It allows the penalty to be imposed in its upper half, among other cases, where the victim of the bodily harm was or had been the offender's wife or a woman bound by a similar relationship of affection. It operates in the field of bodily harm requiring medical or surgical treatment.
• Article 153 CP (occasional ill-treatment). This is one of the central provisions. It punishes psychological impairment, minor injury or physical ill-treatment without injury where the victim is or has been the wife or a woman bound by a similar relationship of affection (and also especially vulnerable persons living with the offender). It elevates to an offence conduct that, outside that context, might be treated differently.
• Article 171 CP (threats). It introduced a specific offence of minor threats within the partner context, aggravating the response to threats directed at someone who is or has been the wife or a woman bound by a similar relationship of affection.
• Article 172 CP (coercion). In parallel, it provided for a specific offence of minor coercion in that same partner context, reinforcing the punishment of conduct aimed at compelling or forcing the victim.

The practical scope is significant: conduct that, as a general rule, might constitute minor infringements becomes, in the partner context, offences carrying an aggravated penalty and is, moreover, tried before a specialised jurisdiction. The current wording of each article should always be checked in the Penal Code, as these provisions have been the subject of later refinements.

The Courts on Violence against Women

One of the most distinctive contributions of Organic Law 1/2004 was the creation of the Courts on Violence against Women, specialised judicial bodies that take charge of the investigation of criminal proceedings for these offences and also deal with certain directly related civil matters (measures concerning children, the family home, maintenance, and so on) where they concur with the criminal proceedings.

The rationale for this specialisation is twofold: on the one hand, to concentrate in a single body the criminal response and the urgent civil measures, sparing the victim from having to litigate simultaneously in different jurisdictions; on the other, to equip those courts with specific training and resources. For the defence, this specialisation means being familiar with the procedural particularities of these bodies and the often very short time frames in which decisions of great consequence are taken.

The protection order and precautionary measures

Organic Law 1/2004 set up and reinforced the protection order for victims of gender violence, an instrument that allows measures aimed at the victim's safety to be adopted quickly and in a concentrated manner. Among the precautionary measures that may be ordered are, among others, the restraining order (prohibition of approaching the victim and certain places), the prohibition of communication with the victim, and other measures of a criminal or civil nature aimed at protection.

These measures may be adopted at a very early stage of the proceedings, even before evidence has been fully taken, on the basis of indicia and an objective situation of risk. That is why it is essential for the defence to intervene from the very first moment: the content and scope of these measures shape the everyday life of the person investigated (residence, contact with the children, place of work), and breaching them may give rise to a fresh offence of breach of a precautionary measure or of a sentence.

What it means today for the investigated, the accused and victims

For anyone being investigated or prosecuted in a gender violence matter, the framework of Organic Law 1/2004 means facing aggravated offences, a specialised jurisdiction and the possibility of precautionary measures with immediate effect. The key decisions are taken very early, sometimes in the first hours, so legal assistance from the moment of arrest or first summons is decisive. The defence must analyse with precision the characterisation of the facts, whether the elements of the aggravated offence concur, and the proportionality of the measures adopted.

For those acting as victims or injured parties, the law offers a reinforced channel of protection and assistance, with specialised bodies and safety measures that can be ordered quickly. The prosecution must nonetheless sustain a technically sound charge and provide sufficient evidence, because the system, being safeguard-oriented, requires the facts to be proven with the rigour proper to criminal proceedings.

Over the whole framework prevails, as in any criminal field, the presumption of innocence and the principle that the burden of proof lies with the prosecution. The special sensitivity of this subject does not alter those safeguards: precisely because of the gravity of what is at stake, respect for the rules of the process is non-negotiable.

Defence strategies

On the basis of this legal framework, the main lines of defence we work on are:

• The evidence. This is the central pillar. Rigorously analysing the evidential material: the medical injury report and its consistency with the version maintained, the messages and communications, the witnesses, the reports and any element of corroboration. Where the prosecution rests decisively on a single statement, its credibility, consistency and objective corroboration must be examined in line with the settled criteria.
• The exemption from the duty to testify (Art. 416 of the Criminal Procedure Act). A spouse or a person bound by a similar relationship of affection may be exempt from the obligation to testify against the person investigated. Its correct application — when it applies, how the person must be informed of it, and what effect it has on earlier statements — is a decisive technical question in many cases.
• The presumption of innocence. Recalling that it is for the prosecution to prove the facts beyond all reasonable doubt and that reasonable doubt must be resolved in favour of the person investigated.
• Examination of the elements of the aggravated offence. Verifying the actual existence of the partner or former-partner relationship required by Arts. 148, 153, 171 and 172 CP and the correct subsumption of the facts, as opposed to characterisations that do not meet all the requirements.
• Proportionality of the precautionary measures. Challenging, where appropriate, the scope and duration of the restraining and non-communication orders, having regard to the real situation of risk and the circumstances of the case.

How to act if this reform affects you

If you are being investigated, have already been charged, or act for the prosecution in a gender violence matter, it is advisable to act as soon as possible. Strategy is decided in the early stages: precautionary measures may be ordered immediately, the characterisation of the facts is fixed very early, and the exemption from the duty to testify raises decisions that are best faced with advice from the outset. Waiting may seriously limit the options for the defence.

You can read more about this and other amendments in our criminal law reforms section, consult the provisions in the annotated Penal Code, or learn how we approach criminal defence in this type of matter. You will find further analysis of legislative and procedural developments on the firm's blog.