Criminal Lawyers in Physical & Psychological Mistreatment

The crime of physical and psychological mistreatment within partner or family contexts is articulated in the Spanish Criminal Code through two complementary figures: Art. 153 CP, which punishes occasional mistreatment, and Art. 173.2 CP, which punishes habitual mistreatment. The protected legal interest is plural: the physical and psychological integrity of the passive subject, their personal dignity and, per consolidated constitutional doctrine in STC 59/2008 on Organic Law 1/2004 of Integral Protection Measures against Gender Violence, also the right to real equality between men and women in partner relationships. Supreme Court case-law has reiterated that habitual mistreatment is an autonomous and permanent offence protecting peaceful coexistence, not the mere repetition of isolated violent acts.

The Spanish Criminal Code distinguishes several modalities within this scope. Art. 153.1 CP punishes occasional physical mistreatment —blow, push, grab or any violent act not causing injury requiring medical treatment— when the victim is or has been the offender's wife or a woman bound to him by an analogous emotional relationship, even without cohabitation, or an especially vulnerable person living with him; the penalty is six months to one year's prison or thirty-one to eighty days' community service. Art. 153.2 CP regulates the analogous case when the victim is any other person listed in Art. 173.2 CP (ascendants, descendants, siblings, minors…), with three months to one year's prison or the same community service. Art. 173.2 CP typifies habitual mistreatment, made up of repeated physical or psychological violent acts generating a climate of domination, humiliation or terror in the victim; it is punished with six months to three years' prison, deprivation of the right to bear arms for three to five years and, where appropriate, special disqualification from parental authority for one to five years. Habitual psychological mistreatment includes systematic insults, humiliation, financial control, social isolation and conduct akin to gaslighting.

The penalties and procedural consequences are severe and specific. Art. 153.1 CP carries six months to one year's prison with possibility of community service, plus deprivation of the right to bear arms of one year and one day to three years and, where applicable, special disqualification for parental authority for up to five years. Concurrence of aggravating circumstances —presence of minors, use of weapons, commission in common domicile or breach of a precautionary measure— raises the penalty to its upper half. Art. 173.2 CP provides for six months to three years' prison and, in its aggravated modality (presence of minors, use of weapons, breach or violence in common domicile), the penalty is imposed in its upper half, potentially reaching three years. Added to this is the ban on approaching the victim, mandatory on conviction (Art. 57.2 CP), and, if the judge so orders, the ban on communicating with her (Art. 48 CP); for less serious offences such as these, where prison is imposed, they last one to five years longer than the prison term. During the proceedings, the suspension of visitation rights with children may also be ordered (Art. 66 LO 1/2004), and Art. 92.7 of the Civil Code rules out shared custody while the parent faces criminal proceedings or there are well-founded signs of violence.

Technical defence in this type of proceedings requires maximum specialisation due to evidentiary delicacy and the effective inversion of the presumption operating in many trials. The first axis is challenging the habituality link: demonstrating that the reported episodes are isolated facts motivated by specific crises (breakup, jealousy, marital conflict) and not a permanent domination pattern; when the link is broken, the qualification reduces from Art. 173.2 CP to Art. 153.1 CP, with radically different penalty ranges. The second axis is challenging the victim's sole testimony per the test consolidated by the Supreme Court: absence of subjective incredibility (no spurious motive derived from divorce, custody or patrimonial advantage), verisimilitude (peripheral corroborations through medical reports, witnesses or messages) and persistence in incrimination. The third axis is the forensic psychological counter-expert: when the prosecution provides a private psychologist report diagnosing battered woman syndrome, we propose a contradictory expert questioning methodology, absence of standardised tests (MMPI-2, PAI, SCID) or foundation based on subjective account without corroboration. The fourth axis is legitimate defence or reciprocity defence: in many cases, WhatsApp documentation, legal recordings and third-party testimonies prove two-way conflicts that undermine the climate of habitual violence described by the prosecution.

In current forensic practice we observe a very significant increase in habitual mistreatment complaints in contentious marital breakup contexts. The Violence against Women Sections of the Courts of Instance (formerly the Courts of Violence against Women) apply the procedural device foreseen in LO 1/2004 with speed: protection order in seventy-two hours, provisional restraining, immediate visitation suspension and, in serious cases, provisional prison. The testimonial exemption of Art. 416 LECrim remains a critical point of procedural strategy, especially after Organic Law 8/2021 amended Art. 416.1 LECrim, removing the exemption where the victim is or has been a private prosecutor or agreed to testify after being informed of the right. Coordination between the Prosecution, the Court and the social services in these proceedings calls for a proactive and technical defence from the first minute. At Alonso Sala we have 15+ years of experience in criminal defence of men and women accused of mistreatment, articulating strategies combining substantive criminal law, forensic psychology and family law, aiming to preserve the client's freedom, presumption of innocence and parental rights.

It is vital to distinguish between an isolated episode of conflict (Art. 153) and a state of permanent aggression (Art. 173.2). The prosecution will try to add up several isolated episodes to build a crime of habituality, which carries much more serious penalties (up to 3 years in prison).

Our defence focuses on uncoupling the facts, demonstrating that they were specific conflicts motivated by couple crises (breakup, jealousy) and not habitual violence. If we manage to break the link of habituality, the possible penalty is drastically reduced.

If there is an injury report, we rigorously analyse the causal mechanism. Often, defensive marks (scratches on the man's arms) are ignored or misinterpreted. We collaborate with medical experts to demonstrate if her injuries are compatible with her account or if they could be self-inflicted or accidental during a defensive struggle.