Vicarious Violence: What It Is and How Criminal Law Addresses It

Vicarious violence is one of the most serious manifestations of gender violence. The term describes violence that the aggressor does not direct against the woman herself, but against the people she loves most —primarily her children— in order to cause her the greatest possible suffering. This guide explains what it is, why it bears that name and how Spanish criminal law addresses it.

What Vicarious Violence Is

Vicarious violence is an instrumental violence: the aggressor uses the children —or other people, animals or assets to which the woman is emotionally attached— as an instrument to hurt her. The ultimate aim is not so much the direct victim of the specific act as the woman the aggressor wants to destroy emotionally. Its forms are very diverse: from mistreatment, threats or the manipulation of minors, to the deliberate breach of parental obligations or, in its most extreme expression, physical harm to the children.

Why It Is Called "Vicarious"

The adjective "vicarious" refers to something done or suffered in place of another. In vicarious violence, the victim on whom the conduct materially falls and the person the aggressor wants to harm do not coincide. The term was coined by psychologist Sonia Vaccaro and has been incorporated into legal, social and institutional language to name a reality that was previously diluted under other categories.

Minors: Victims, Not Mere Witnesses

For a long time, the children who grew up in an environment of gender violence were considered mere witnesses. Legislative evolution has consolidated a change of approach: they are direct victims. Organic Law 8/2021, on the comprehensive protection of children and adolescents against violence, reinforced this consideration. The recognition is not symbolic: it means that minors hold their own protection measures, the right to assistance and information, and specific treatment in the proceedings.

Not an Autonomous Offense: How It Is Prosecuted

A technical point should be clarified: the Criminal Code does not contain an offense called "vicarious violence". It is a criminological and social concept, not an autonomous criminal type. The specific conducts that make it up are prosecuted and punished through the corresponding criminal types:

• Homicide or murder, in its most extreme manifestation.
• Bodily harm and the offense of habitual mistreatment (Art. 173.2 CP).
• Child abduction (Art. 225 bis CP).
• Threats, coercion and breach of a sentence or precautionary measure.

Assessing these facts in the context of violence against the woman, with the gender perspective required by law, is what allows them to be correctly read as a tool of control and harm directed against her.

Protection Orders and Visitation Rights

The legal response to vicarious violence is not only punitive: it is, above all, protective. The protection order may extend its effects to the children. And, particularly relevant, custody, visitation rights and parental authority may be affected. The legislation provides that the court must rule expressly on the suspension of visitation rights or of parental authority of a parent involved in criminal proceedings for gender or domestic violence, always considering the best interests of the minor.

Legal Framework of Reference

Several rules converge in the treatment of vicarious violence:

• Organic Law 1/2004, on comprehensive protection measures against gender violence.
• The Statute of the Victim of Crime (Law 4/2015), which sets out victims' rights to information, protection and participation.
• Organic Law 8/2021 (LOPIVI), which reinforced the protection of minors and their consideration as victims.

The concept of vicarious violence is also present in public policies against gender violence, such as the State Pact on the matter.