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The second session of the Family First series addresses the relevance of gender in the criminal code offenses.

Professor Elena Íñigo provided some clues on the concept of domestic violence and gender-based violence

PhotoManuelCastells/University professor Elena Íñigo, Criminal Law .

20 | 03 | 2023

Is there such a thing as a crime of gender violence, and are crimes committed by reason of kinship, gender, or because the perpetrator is a man and the victim is a woman? The professor of Criminal Law of the University, Elena Íñigo Corroza, provided some clues about the crime of gender violence during the second session of lecture series online Family First, organized by the Master's Degree of Family Law of the University of Navarra, and offered an analysis of the relevance of gender in the crimes included in the Criminal Code

" Men's violence against women is expressly regulated in the Criminal Code in 1995, which replaces the previous legislation of the 1970s," he introduced and then referred to what he called "two main legislative milestones" that make it possible to differentiate the crime of gender violence from the crime of domestic violence. 

The professor first cited the 2003 law on specific measures at subject on citizen security, domestic violence and social integration of foreigners. A law that refers for the first time to the term domestic violence and establishes violence in the family environment as a crime against moral integrity. "This criminal subject what it protects is family peace, that is, that the environment where a person develops is not attacking the moral integrity of other people. It regulates the crime in a curious way: the author of the criminal act can be anyone, man or woman; and the passive subject is very broad, from the spouse or person with whom an affective relationship is maintained, even without cohabitation; own descendants or of the spouse; siblings, adopted children, people in status of vulnerability who live together, subjects under the guardianship of the spouse or cohabitant, those persons under custody or guardianship in public and private centers or other persons who live together in the family environment even if they are not relatives, etc", he explained. 

Elena Iñigo then spoke about the 2004 law, a comprehensive law on protection measures against gender violence, which addresses this concept for the first time and affects different areas (labor, civil, procedural) and other issues, such as advertising. In its exhibition of motives, the law dictates that gender violence is not a problem that affects the private sphere but is the most brutal symbol of inequality in our society, of violence against women for the mere fact of being women. "This law promulgates a certain positive inequality in favor of women," added Elena Íñigo, who pointed out the confusion that is generated later, in article 1 of the same law, which establishes that crimes of gender violence are those in which the man attacks the woman, when between them there has been a relationship of affection, even without cohabitation.  

A conceptual confusion: Domestic violence or gender violence?

"There is a conceptual confusion between gender violence and domestic violence. Both are violent acts, both occur in the family nucleus, but not all violent acts that occur in the family environment are cases of gender violence and not all cases of gender violence, violence against women because they are women, occur in the family environment," Elena Íñigo explained. "In fact, if the 2004 law were a law against gender violence in a broad sense, it should cover all behavior against women just because they are women without the restriction that the woman has or has had an affective relationship with her aggressor". 

Eleña Íñigo highlighted a novel "and quite criticizable" criterion in criminal legislation: there is a specific penalty for the perpetrator, a man, and special protection for women. "The penalty is increased and the perpetrator is required to be a man," she commented. 

The head of Criminal Law then cited the aggravating factors that can be applied to cases of violence: the generic aggravating factor, for reasons of discrimination based on sex, ethnicity, religion, political reasons, etc.; and the aggravating factor based on kinship , "a circumstance that deserves detailed study", said Elena Iñigo, "since it is mixed, that is, sometimes it acts as an aggravating factor and in other cases, as a mitigating factor".