Criminal Lawyers in Family Violence

Domestic Violence: Concept, Types and Penalties (Arts. 153, 173.2, 468 CP)

Domestic violence is the criminal category grouping acts of physical, psychological or economic violence between persons linked by family ties or analogous cohabitation, distinct from —though overlapping with— gender violence. The protected interest is multiple: personal integrity and family peace, together with the dignity and freedom of the most vulnerable members of the domestic group (minors, persons with disability or dependency, ascendants). The Criminal Code articulates the response through three central offences: occasional abuse under Art. 153 CP, habitual abuse under Art. 173.2 CP and breach of measures under Art. 468 CP. Supreme Court case-law has consolidated that habituality is not identified with an arithmetic number of acts, but with the existence of a climate of continuing violence perpetuating the victim's submission.

The modalities of the domestic-family sphere are varied. Occasional physical abuse (Art. 153.2 CP) sanctions psychological harm, a minor injury or physical mistreatment without injury against the subjects of Art. 173.2 not covered by Art. 153.1 (ascendants, descendants, siblings, minors or persons with disability under custody, person linked by cohabitation, spouse's children, and also a spouse or partner where it is not gender violence) with 3 months to 1 year prison or community service. Habitual abuse under Art. 173.2 CP punishes violence habitually exercised against the same persons with 6 months to 3 years' prison, without prejudice to the penalties corresponding to the specific offences in which violent acts materialised. Economic violence, although without autonomous type, is channelled through coercion (Art. 172 CP), unfair administration of joint patrimony (subject to the Art. 268 CP exemption between spouses who are not separated, ascendants, descendants and siblings) or non-payment of maintenance (Art. 227 CP). Protection orders under Art. 544 ter LECrim add precautionary measures whose breach integrates the offence of Art. 468 CP.

To prison penalties are added severe accessory consequences: deprivation of the right to bear arms (1 year and 1 day to 3 years under Art. 153; 3 to 5 years under Art. 173.2), possible special disqualification from exercising parental authority, guardianship, tutelage, custody or foster care if the judge considers it necessary in the minor's interest, and prohibition of approach and communication with the victim during periods that may reach 10 years. Activation of ordinary jurisdiction versus violence against women jurisdiction depends on the relationship between aggressor and victim: if the victim is wife, partner or ex-partner of the male aggressor, the Violence against Women Section of the Court of Instance (Organic Law 1/2004) investigates, with potential aggravation of penalties; if the relationship is different (parent-child, siblings, non-partner cohabitants), the ordinary Investigation Section of the Court of Instance (Sección de Instrucción; formerly the Investigating Court) does. Penalties in pure domestic violence tend to be lower but retain the public nature of the offence and the impossibility of withdrawal by the victim.

The technical defence in domestic violence articulates four axes consolidated by case-law. First, the challenge to habituality in Art. 173.2 CP proceedings: the Supreme Court demands proof of a sustained pattern (not temporally isolated acts), and the victim's psychological expert report must rule out simulation or overdimensioning motivated by divorce or custody conflict. Second, evidence analysis: the victim's statement as sole evidence must overcome the criteria of subjective credibility, persistence and objective verisimilitude (peripheral corroboration) consolidated by Supreme Court case-law. Third, excluding or mitigating causes: legitimate defence, state of necessity, aggressor's mental disorders with expert basis, anomalies from substance use. Fourth, defence against disproportionate precautionary measures: the protection order must respect the principle of proportionality between objective risk and rights restriction, allowing challenge when imposed automatically without individualised assessment.

In current forensic practice, domestic violence proceedings have experienced sustained growth linked to several factors: instrumentalisation in contested divorce proceedings, regulatory dispersion between Organic Laws 1/2004 and 8/2021, gender perspective consolidated in evidentiary assessment, and Organic Law 10/2022 on comprehensive guarantee of sexual freedom. The reform of Art. 416.1 LECrim by Organic Law 8/2021 (which removes the exemption where the witness is or has been a party as private prosecutor or agreed to testify after being informed of the right not to) and Supreme Court doctrine on the exemption have redefined the scope of the victim's right not to testify against a relative and the procedural effects of their silence. At Alonso Sala, with 15+ years' experience, we approach each case from a double perspective: rigorous technical defence of the investigated when signs of procedural instrumentalisation concur, and firm private prosecution when violence is real, articulating procedural strategies combining criminal, family civil and, where appropriate, specialised psychological assistance.