Forced Marriage Lawyer (Art. 172 bis CP)

The offence of forced marriage is set out as an autonomous offence in Article 172 bis of the Spanish Criminal Code, introduced to give effect to the Istanbul Convention and European rules on protection against violence towards women. It is configured as a specific, aggravated form of the offence of coercion, designed to protect a person's freedom to decide whether to marry, whom and when. The essence of the offence lies in the overriding of the victim's free will regarding one of the most personal decisions of their life.

The basic offence under Article 172 bis CP

Article 172 bis.1 CP punishes anyone who compels another person to enter into marriage using serious intimidation or violence. The penalty is imprisonment of 6 months to 3 years and 6 months or a fine of 12 to 24 months, depending on the severity of the coercion or of the means used. The key verb is 'to compel', that is, to override another person's will by means of pressure they cannot resist. Mere social, family or moral pressure is not enough: physical violence or serious intimidation is required, understood as the threat of a serious, immediate and credible harm capable of overcoming the resistance of a person in the victim's circumstances.

Forcing departure from Spanish territory

Article 172 bis.2 CP sets out a specific mode of commission: the same penalty is imposed on anyone who, for the purpose of forced marriage, uses violence, serious intimidation or deceit to force another person to leave Spanish territory or not to return to it. This provision is of great practical importance, as it responds to the reality of travel abroad to celebrate marriages in countries where control over the victim is greater or where the marriage can be formalised outside the safeguards of Spanish law. This sub-offence is completed without the marriage actually taking place: the forced departure or the prevention of return for that purpose is sufficient.

Aggravation where the victim is a minor

Article 172 bis.3 CP provides that penalties are imposed in their upper half where the victim of the offence is a minor. This aggravating factor reflects the particular vulnerability of minors and the frequency with which forced marriages are arranged for adolescents. The upper half of the prison sentence therefore runs from 2 years to 3 years and 6 months.

Connection with human trafficking (Art. 177 bis CP)

Forced marriage is closely related to human trafficking under Article 177 bis CP. Article 177 bis.1.e CP expressly includes, among the purposes of trafficking, the celebration of forced marriages. Trafficking is committed by anyone who, using violence, intimidation, deceit, abuse of a position of superiority or of the victim's situation of need or vulnerability, recruits, transports, transfers, harbours, receives or houses the victim for the purpose of forcing them into marriage. The penalty for trafficking is far higher than that for forced marriage: imprisonment of 5 to 8 years, aggravated where circumstances such as the victim being a minor, the exploitation of their vulnerability, or endangering their life are present. Where the facts constitute both trafficking and a subsequent forced marriage, the relationship between the two offences must be analysed rigorously to avoid double punishment of the same wrongdoing.

Defence strategies

Defending against a charge of forced marriage requires a detailed analysis of the consent of the alleged victim, since the boundary between legitimate family pressure and criminally relevant serious intimidation is decisive. It is essential to challenge the presence of violence or serious intimidation, to examine the credibility and consistency of the victim's testimony in line with the Supreme Court's doctrine on sole witness evidence, and to define correctly the specific purpose required in the departure-from-the-territory mode. In cases connected with trafficking, the defence must verify whether the means of commission of Article 177 bis CP are genuinely present and whether there is the specific intent directed at the purpose of forced marriage, avoiding an excessive charge. Where representing the victim, by contrast, the firm prepares the complaint, the protection measures and the exercise of the private prosecution.