Vicarious Violence Lawyers

What Vicarious Violence Is

Vicarious violence is an extreme form of gender violence: it consists of instrumentalizing the children — or other close persons — to cause the greatest possible suffering to the woman. The aggressor does not act directly on the woman, but on what matters most to her. It is a concept recognized by legal scholarship, the institutions and protective legislation.

Applicable Criminal Offenses

Vicarious violence is not an autonomous offense under that name: it is prosecuted through the figures already provided in the Criminal Code. Depending on the specific conduct, the applicable offenses may be homicide or murder, bodily harm, abduction of minors (Art. 225 bis CP), threats and coercion, habitual abuse (Art. 173.2 CP) or the breach of protection measures.

Legal Recognition

The Spanish legal system recognizes children as direct victims of gender violence, not merely as witnesses. This recognition has practical consequences: it legitimizes protection measures in their favor, reinforces the suspension of the contact regime in serious cases, and orients the criminal response towards the comprehensive protection of the minor.

Defense of the Victim

When we assist the woman victim, we exercise the private prosecution to drive the investigation, request protection measures for her and the minors, seek the suspension of the contact regime where appropriate and claim repair of the harm. Coordination with protection resources and the family courts is essential.

Defense Against the Accusation

When we assist the person under investigation, we carry out a rigorous analysis of the evidence. The gravity of the concept cannot translate into a conviction without sufficient evidence: we examine the classification applied, the actual concurrence of the elements of each offense and respect for the presumption of innocence.

Criminal procedure stages and the competent court in vicarious violence

A technical premise comes first: vicarious violence is not an autonomous offence under that name. It is a concept —using the children or other people in the victim's circle to inflict the greatest possible harm on a partner or former partner— recognised in child-protection legislation and in legislation against gender violence. In criminal proceedings no one is charged with «vicarious violence»; charges are brought for the offences actually committed: homicide or murder, bodily harm, habitual abuse under Article 173.2, threats, coercion, or child abduction under Article 225 bis, with the aggravating circumstances of kinship and of gender where they apply.

The route is that of ordinary criminal proceedings. The Investigating Court (Juzgado de Instrucción) opens preliminary proceedings, conducts the investigation and, once concluded, issues an order transforming the case into abbreviated proceedings or a dismissal order. The prosecution and defence pleadings are then filed, the trial is held before the adjudicating court, and judgment is handed down, subject to appeal. When the acts are committed within the sphere of gender violence —against a partner or former partner of the aggressor— the investigation falls to the Court of Violence against Women (Juzgado de Violencia sobre la Mujer), which assumes both the criminal inquiry and the connected civil measures on custody, maintenance and visitation.

Adjudication is assigned to the Criminal Court (Juzgado de lo Penal) where the maximum penalty for the offence does not exceed five years' imprisonment, as is the case with non-payment of maintenance, habitual abuse or child abduction. Only the most serious offences, such as murder, are tried before the Provincial Court. In no event is the National High Court (Audiencia Nacional) competent; it is reserved for matters entirely unrelated to this field.

Evidence: documents for non-payment, psychological expert reports for abuse, custody documents for abduction

Each manifestation of the conduct demands a different evidentiary strategy. In non-payment of maintenance under Article 227 the evidence is essentially documentary: the judicial decision or approved agreement setting the obligation, the bank statements showing the absence of payment over two consecutive months or four non-consecutive ones, and documentation on the obligor's actual financial capacity, since the offence requires a wilful omission and not the mere inability to pay. The defence is often built by proving a documented, supervening lack of financial capacity.

For habitual abuse under Article 173.2, the psychological expert report becomes particularly relevant, as it can assess the pattern of control, the emotional impact and, where applicable, the harm caused to children used as an instrument. Alongside it, medical injury reports, social or healthcare service reports, messages and communications, and the testimony of the injured person are usually submitted; that testimony is assessed under the settled criteria of persistence, coherence and peripheral corroboration.

In cases of child abduction under Article 225 bis, custody documents are decisive: the judgment or agreement establishing custody, the visitation regime in force, and proof of the removal or retention without the consent of the other parent or in serious breach of a decision. Establishing the date of return matters, because a return within fifteen days following the report (denuncia) of the abduction expressly mitigates the penalty (six months to two years' imprisonment); Article 225 bis computes this period from the date of the report, not the abduction.

The boundary with the family civil jurisdiction and with neighbouring offences

Not every family conflict has criminal reach. Breach of the visitation regime, an isolated delay in a payment, or disagreements over the children's upbringing generally belong to the family civil jurisdiction, which has its own mechanisms for enforced execution. The criminal route is triggered only where the conduct fully satisfies a specific offence: the wilful and repeated omission of Article 227, the abduction of Article 225 bis, or the abuse of Article 173.2. It is therefore essential to separate the civil wrong from the offence from the very outset.

It is also important to distinguish between neighbouring offences according to gravity and habituality. An isolated assault within the couple may constitute the occasional abuse offence of Article 153, whereas the repetition of violent or controlling acts configures the habitual abuse of Article 173.2, punished autonomously and compatibly with the specific episodes. Threats and coercion have their own offences, aggravated when the victim is or has been the offender's partner.

Using the children as instruments may, in addition, be channelled through unfounded complaints or proceedings, or through manipulation of the child's account —conduct that at times borders on other criminal figures. Each of them calls for rigorous analysis to avoid both criminalising a civil dispute and leaving unpunished a genuine strategy of harm inflicted through third parties.

Protection order, prescription, reparation and conformity

The protection order of Article 544 ter is a central instrument. It allows criminal measures —such as a ban on approaching or communicating with the victim— and provisional civil measures on the use of the home, custody, maintenance or the visitation regime to be ordered swiftly, integrating both dimensions in a single decision. Its breach constitutes the offence of Article 468.2, and it must be stressed that the victim's consent to resuming contact is irrelevant: the person who breaches the measure is the one bound by it, so neither reconciliation nor an invitation from the protected person excludes criminal liability.

As to prescription, Article 131 of the Criminal Code applies. Since the offences that channel this type of violence —non-payment of maintenance, habitual abuse, child abduction, threats or coercion— carry a maximum penalty not exceeding five years' imprisonment, the limitation period is five years. The calculation has particularities in continuing offences, such as habitual abuse, where habituality extends over a prolonged period.

Finally, mitigation avenues should be assessed. In non-payment of maintenance, paying what is owed may give rise to the mitigating circumstance of reparation of harm, and early return of the child mitigates the penalty in abduction. A conformity agreement —settlement with the prosecution on the facts and the penalty— may be appropriate where the evidence is solid, allowing a swifter resolution and, where applicable, a reduction of the sentence, always after a measured examination of the specific case and its consequences.