Gender & Domestic Violence

In the current legal landscape, defense in Gender Violence (VioGén) proceedings represents one of the most complex and delicate challenges for any criminal lawyer. The enactment of Organic Law 1/2004 (LIVG) established a comprehensive protection system which, while born with the laudable intention of protecting victims from an undeniable social scourge, has generated in forensic practice a procedural asymmetry that challenges the presumption of innocence. This is not an opinion, but a palpable reality in Violence Against Women Courts: the accused male starts with a structural disadvantage. The mere filing of a complaint activates an almost automatic police and judicial protocol that, in the immense majority of cases, entails the immediate arrest of the man ("spending the night in the cell" is the standard, regardless of the severity of the reported facts or the real risk) and the request for a protection order that includes restraining orders and prohibition of communication.

This "automation" of precautionary measures responds to a risk prevention logic that legislators and society have prioritized, but which often collides head-on with the fundamental rights of the investigated. We frequently find ourselves in situations where the only prosecution evidence is the complainant's testimony. And although the Supreme Court requires that said testimony pass the "credibility test" (absence of subjective incredibility, verisimilitude, and persistence in incrimination), the inertia of specialized courts tends to grant reinforced veracity to the victim's account. This creates, de facto, a situation close to the reversal of the burden of proof: it is the accused who is compelled to demonstrate his innocence, proving negative facts (that something did NOT happen), which is diabolical from an evidentiary point of view.

A critical, and often taboo, aspect that we address with total rigor and without complexes, is the existence of instrumental complaints. Although their existence is politically minimized, the reality of criminal law firms shows us cases where the criminal route of gender violence is used as a spurious tool to obtain tactical advantages in divorce or contentious breakup proceedings. A conviction, or even a mere valid restraining order, can automatically determine the attribution of the use of the family home, the custody of minor children, and the establishment of alimony, in addition to annulling any possibility of joint custody. Identifying these "spurious motives" (revenge, resentment, economic interest) is vital to dismantle the credibility of the prosecution testimony and is one of the cornerstones of our defense strategy.

The social stigma accompanying a gender violence complaint is devastating. The label of "abuser" is socially imposed long before there is a final sentence, causing what we call an anticipated "bench penalty": loss of employment, social isolation, breakdown of family ties, and often irreversible reputational damage, even if acquittal is finally achieved. Therefore, the defense cannot be limited to the strictly legal; it must be a comprehensive defense that protects the client's dignity and combats the prejudices that permeate the procedure. We are not here to morally judge our clients' relationships, which are usually complex and bidirectional in their conflicts; we are here to ensure that this complexity is not unjustly simplified into a criminal conviction for a crime that carries indelible criminal records and prison sentences.

At Alonso Sala, our defense methodology in VioGén is proactive and meticulous. We do not wait for the trial. From the first assistance at the police station, we work on collecting exculpatory evidence: forensic dump of instant messaging (WhatsApp, Telegram) to reconstruct the true context of the relationship and demonstrate whether there was a climate of violence or, on the contrary, relational normality or mutual conflict; location of environment witnesses; and psychological expert reports if necessary. We know we are facing a powerful legal machine and extreme social sensitivity, and precisely for that reason, our technical defense must be impeccable, rigorous, and courageous to assert the material truth of the facts against the system's automatisms.