Violence against women and domestic violence – fitness check of EU legislation

Feedback by Eugenio Llorente Barrueco

Spain ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) in April 2014.  Spain, however, does not comply with the convention in some fundamental ways.  The Spanish Government itself admits that:

“There is a clear difference under Spanish law between gender violence (which is committed by the male who is or who has been the partner or spouse of the woman victim) and domestic violence (which is committed in the home by any of the members of the family). Nevertheless, current legislation is being revised in order to consider any form of violence against women as gender violence, including that which occurs outside the context of partners and ex-partners”.

(Report submitted by Spain pursuant to Article 68, paragraph 1 of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Baseline Report) Received by GREVIO on 18 February 2019).What is understood, in Spanish law, by “gender violence” (or “gender-based violence”)  is given in  article 1 of the  Organic Law 1/2004 of 28 December on Integrated Protection Measures against Gender Violence:

“Article 1.  Object of the Law.”

“The object of the law is to act against violence which, as a manifestation of discrimination, the situation of inequality and the relations of power of men over women, is carried out against them by those who are or have been their spouses or by those who are or have been related to them through similar relations of affectivity, even without cohabitation”.

In the first place,  let’s note that It is highly paradoxical that a law supposedly intended to combat violence against women, excludes the majority of them,  only affecting a minority of women.  The OL  1/2004 does not establish as its object to combat violence against women but to combat a very special  type of violence  against women which is termed “gender violence” (or “gender-based violence) which by legal definition has to occur and only occur in intimate partner relationships.

Both the  OL  1/2004 law, and above all, its  jurisprudence, clarify the fundamental elements that necessarily  constitute gender violence.  The element of aggression (1), physical o psychological is not enough, this violence should answer a discriminatory purpose (2), should show a situation of inequality, through which such violence men would seek to establish (3) a situation of power and dominion over women.

It only refers to women as victims, that is, victims of violence within an intimate partner relationship, past or actual. Gender violence so conceived is by definition unidirectional: men over women, never women over men.  That is to say, violence of women against men is violence, of course, but no gender violence.

The whole law depends on this very particular and unique  concept of “gender violence.   The concept of gender violence is the interpretative key behind the corresponding reforms of Civil and Penal codes, and all types of institutional legislatives initiatives triggered by it.

The importance of article 1  is patent, because the logic of the LO 1/2004 is that it is a block.

Violence against women outside an intimate partner relationship circle, falls outside the umbrella of  gender violence, therefore not enjoying the special protection or treatment afforded by the LO 1/2004 on Gender Violence.

By way of just one little real example.  We read in the news that a man has killed his wife and mother in law. The case is  correctly reported by the now experienced Spanish press as one case of gender violence, the murder of the wife, and a case of murder (non gender violence) the murder of the mother in law. So there is only one case of gender violence for the statics.

The law and its application is set out to show, that only in  intimate partner relationship men can exercise power and dominion over women.

In short, the historic and past role models stereotypes concerning male-female relationships based on male dominance and female submission in Spain are generalized and turned into law.

Here below this is the definition and concept of “gender-based violence law” by the Commission of the Council of Europe:

“Gender-based violence is violence directed against a person because of that person’s gender.  It can include violence against women, domestic violence against women, men or children living in the same domestic unit. ”.

Note is that this definition is gender neutral, that is, any adult person, regardless of sex or gender, can be a victim or perpetrator of “gender violence” that is violence against another person.  Although gender violence affects “disproportionally” women and girls, it can affect any person. Thus, the concept of gender violence according to the Istambul Convention is multidirectional as opposed to the unidirectionality of the LO 1/2004.

So, gender-based violence, as the term clearly suggest,  is violence primarily but not exclusively committed by men towards women and girls, within or outside the family.  In simple terms it is a violence based on gender.

This gives me the opportunity to point out that the term “gender violence” or “gender-based violence” is difficult enough to understand in the broad and natural EU sense suggested by its composition.  In contrast, as regards Spanish Law terminology, it is almost impossible to understand, let alone guess what might the meaning of the term “gender violence” be, unless we study very carefully the law and corresponding jurisprudence, otherwise the term on its own is totally misleading.

And if we try to explain the term to a layman saying that “gender violence” in Spain and only in Spain means “violence against women”, totally excluding the sense “violence against men” we can be told, which happened to me,  to review our grammar!: “gender cannot mean or suggest  only “woman!”, “You are right- I managed to reply –  No, never, but it does here!”


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