When will we finally have a law for the eradication of gender-based violence?
Law is an instrument used to structure society. The more filled with justice it is, the easiest will be to comply with the rules.
We must distinguish between legality and legitimacy. Legality is the set of legal norms of positive law developed within the framework of the legal system, while legitimacy attributes a value of justice (or injustice) to these norms.
The more legitimacy is given to a rule, the less coercive power will be needed to apply it. The problem is that we have assimilated the concepts of law and justice as synonyms. But, because of the wear and frustration caused by seeing everyday that the law is not equal for everyone, are increasingly fewer those who support this statement. In spite of this, we will continue to argue that at least this should be the trend.
All right, we are aware that the law is an instrument manipulated by power (we just have to look at the Nóos case judgment), but as a feminist and after the new victory of the Popular Party, I fear that the government will further restrict our Criminal Code in terms of gender violence. Has the Spanish society internalized the law on violence that has been in force since 2004? Criminal law acts on the individual and, from this perspective, as long as the norm is not socially internalized, the criminal process and punishment to which it is addressed will not be useful at a collective level.
The explanatory memorandum of Organic Law 1/2004 on Measures of Integral Protection against Gender Violence states that this type of violence is not a problem that affects the private sphere but, as a more brutal symbol of existing inequality between men and women, it has the status of public offenses. Unlike domestic violence, where the gender of the active subject and the passive subject is irrelevant, when the legislator typifies gender violence, the active subject will always be a man and the passive subject, a woman. But they are not passive, they do not die, women are victims of femicide.
We can criticize various aspects of this law: if, as stated in the explanatory memorandum, it is a question of structural violence, how can it be possible that only those women who have been partners or ex-partners, or who are united to the “active subjects” by an analogous relationship of affectivity can use the Courts for Violence Against Women? This nuance eliminates any kind of inequality that occurs outside the realm of the couple or ex-partner. With this restriction we deny what was stated in the preamble of the law and continue to cover arguments such as false accusations. So, is the reinforced criminal protection and the specific judicial protection of the JVM sufficient if limited to the scope of the couple or ex-couple? Does the Spanish legislator agree to the mandate of the Istanbul Convention, which is the first binding agreement on this subject at European level?
But what is most striking is that this law only aggravates punishments when it comes to crimes that are considered as minor against women (threats, coercion). In these cases, the basis of the sentence increases. But what happens when a man kills his partner? Logically, there should be an aggravation of the penalty as we have in light offenses. But no. The legislator contemplates that the penalty for murder or murder is already high enough, and therefore, the sentence is not extended. And it does not expand because if it did it would be an acknowledgment of femicide and not an accumulation of isolated cases of men who kill women. We are not ignoring the existence of the aggravating circumstance of discrimination to the victim by its sex, but this, besides being insignificant, does not agree with the motivation of the law, where a special protection of the women, vulnerable in our patriarchal society . If we have a law against gender violence, is it not logical that it should be characterized by a greater penalty when a woman’s life is taken away simply because she is? Only in light crimes does there exist a difference if the author is male and the female victim. In serious crimes there is no differentiation.
The motivation of the law should be to eradicate the femicides and the first step is the typification of this in the penal code. Perhaps this way, with these small nominative advances, we can influence the mentality of society and we can get legality and legitimacy together.
Laia Fernández Bernalte (@Laia_Fdez_)
Lawyer at Del Canto Chambers
