La delimitación de la ‘violencia de género’: un concepto espinoso

Abstract

In this work are defined the crimes what constitute “gender violence” according to the organic law 1/2004, called “Ley de Medidas de Protección Integral Contra la Violencia de Género”. For that aim, we take three key elements: the first article —«Aim of the law»—; the fourth title —«Criminal Protection»—; and the fifth title —«Judicial Protection»—. So, we establish a group of criminal actions wider than the contented in the fourth title. Special attention is paid to the discriminative element, what, according to the first article, is an essential requirement to the “gender violence” and, however, is not written in the aggravating crimes of the fourth title. This disorder causes two opposed positions, regarding the need of proving in the judgement if the author acted from an ascendancy position on the victim. But both of them have important handicaps. The one requiring that proof, because in reciprocal aggressions man-woman, it bears a conviction of the man, without that ascendancy position, as author of a minor crime (falta) according to article 617 CP, and the conviction of the women as author of a serious crime (delito), according to article 153.2 CP. The one in favour of direct application of these articles, due to the different sanctions to impose to man-woman in these cases, according to article 153.1 and 2 CP, but mainly when the violence become threats or coercions, since there is not an extenuating article to moderate both sanctions. The Constitutional Court has been ambiguous in its resolutions, without solving the polemic theme.