STS 308/2026: the Supreme Court's manual for judging gender violence

Spain's Supreme Court has issued a ruling that reaches beyond the case at hand and has been read, since its publication, as a genuine judicial manual. Judgment 308/2026, of 29 April, of the Criminal Chamber (Second Chamber), reference ECLI:ES:TS:2026:2047, dismisses the appeal of a man convicted of habitual abuse, sexual assault and threats in a partner context, and takes the opportunity to organise and systematise the scattered case law on how gender violence and sexual violence should be judged with a gender perspective.

The significance lies less in what it decides about the case — it fully upholds the lower court's conviction — than in what it offers to judges, prosecutors and lawyers: a three-block framework of criteria intended to guide the assessment of evidence and, above all, the reasoning of judgments in a particularly sensitive area. Below we analyse its content and its practical impact for both the defence and the prosecution.

What STS 308/2026 decides and why it is seen as a "manual"

The judgment upholds a conviction for habitual abuse under article 173.2 of the Criminal Code, sexual assault under article 179 read with article 180, and threats under article 169, applying the mixed kinship circumstance of article 23. By dismissing the appeal, the Supreme Court does not alter the sentence but validates the sufficiency of the evidence and the reasoning of the trial court.

What is distinctive is that, on that basis, the Chamber builds an ordered exposition of the applicable doctrine. Specialist legal media have described it as a "judicial reference manual" because it transcends the case judged and systematises, in a single ruling, criteria that until now appeared scattered across earlier decisions and the international instruments on violence against women.

It should not be confused with another judgment of the same Chamber on the same date (STS 318/2026, ECLI:ES:TS:2026:2000), which concerns a different case. The relevant one here is 308/2026, identified by its ECLI ES:TS:2026:2047.

The three blocks of criteria: 28 + 7 + 7

The first block gathers 28 criteria to identify and describe gender violence in the proven facts. Among them: that gender violence is characterised by the aggressor's aspiration to subjugate the victim; that it entails physical and psychological domination of a structural nature; that it follows a pattern of conduct rather than isolated episodes; and that it may extend beyond the formal partner relationship.

The second block develops 7 criteria on the consequences of a woman's victimisation. They explain behaviours that, without context, might seem contradictory: the permanent fear that conditions even the decision to report, physical or emotional isolation, the plurality of forms of violence (physical, psychological, economic, sexual and vicarious), psychological subjugation, the victim's difficulty in recognising herself as such, and the obstacles to leaving the situation.

The third block systematises 7 criteria on what it means to apply a gender perspective: focusing on the circumstances surrounding acts committed against a woman precisely because she is a woman, discarding stereotypes in the assessment of evidence, and attending to the underlying substratum of domination behind the aggression, while remembering that it is a multidisciplinary approach.

Gender perspective and the presumption of innocence

One of the most relevant aspects for practice is that the judgment dismantles the false dichotomy between applying a gender perspective and respecting the presumption of innocence. The Court stresses that judging with a gender perspective does not mean forgetting in dubio pro reo or reversing the burden of proof.

The gender perspective operates as an analytical tool: it requires the facts to be contextualised and the victim's testimony not to be discarded because of reactions that only make sense within the dynamics of domination. It is neither a shortcut to conviction nor a presumption of guilt, but an assessment criterion that still demands valid and sufficient incriminating evidence.

For the defence, this marks out the terrain: the gender perspective cannot be invoked to fill an absence of evidence, but neither can the context be denied in order to discredit the victim's statement.

Assessing the victim's testimony

In offences typically committed in private and without witnesses, the victim's testimony takes a central role. The judgment recalls the established parameters for that statement to rebut the presumption of innocence: persistence in the incrimination, plausibility of the account with peripheral corroboration, and the absence of spurious motives that would undermine credibility.

The Supreme Court insists that these criteria do not operate mechanically or exclusively: the absence of one of them does not automatically invalidate the testimony, and the assessment requires reinforced reasoning by the court. It also treats pre-constituted evidence as valid to avoid secondary victimisation, especially where minors are involved.

The judgment makes clear that a victim's lack of awareness of suffering violence, or a delay in reporting, are consequences of victimisation itself and not arguments for reducing the credibility of the account.

Habitual abuse under article 173.2 of the Criminal Code

Habitual abuse under article 173.2 of the Criminal Code is an autonomous offence that protects peaceful coexistence and moral integrity, not merely the sum of isolated assaults. The judgment adopts the settled idea that habituality produces a dual harm, physical and psychological, arising from a climate of domination sustained over time.

For that reason the offence is assessed by reference to the permanence and repetition of the violent treatment, regardless of whether the specific episodes were judged separately. The victim is regarded as a qualified witness to those acts of humiliation and control carried out in private.

This framework is completed by Organic Law 1/2004, on comprehensive protection measures against gender violence, which supplies the legislative context in which the Supreme Court situates its doctrine.

Practical impact for prosecution and defence

For the prosecution, the judgment offers a template for reasoning: identifying in the proven facts the features of gender violence, explaining the consequences of victimisation, and justifying the assessment of the testimony. Reasoning that follows these blocks will be harder to challenge on appeal.

For the defence, the reverse is equally useful. If a conviction fails to establish the elements of each block, or applies the gender perspective as a substitute for evidence, there is room to argue a deficit of reasoning or a breach of the presumption of innocence.

In any event, a ruling of this kind reinforces the demand for rigour: neither automatic convictions sheltered behind context, nor acquittals that ignore the dynamics specific to this type of violence. An individualised legal analysis of each case remains essential.