C.119a - Rooftop case

I. The facts describe how F., who had been subjected to various forms of abuse ("insults, threats and physical abuse, as a result of which she was even slightly bruised") by her husband J., left him locked up on the roof, under surveillance and with the advertisementwarning to throw boiling oil on him if he approached the exit. Two days later, J. was released by the police, alerted by neighbours.
We are asked to analyse the criminal responsibility of F., but I will also refer to that of J. (in the previous days), in order to be able to judge that of F. (between 6 and 8 January). Assuming that the events took place as described above, the following analysis can be made.

II. First, human conduct on the part of both parties is required.

A) As for J., there is self-control, both in the previous days, when he subjected F. to various forms of ill-treatment, and during the two days he remained locked up; and there is no datafor the existence of a cause of inaction (even if he slept for a few hours, that is to say, even if there was unconsciousness, it occurred only during certain hours). Therefore, both participants are engaged in human conduct.
B) As for F., we could say that whoever uses a lock at the precise moment when someone is locked in, is said to take advantage of the occasion, which requires waiting, watching, reacting, acting quickly and precisely..., all of which supports the existence of self-control on the part of her, F., in locking up J. And something else is said to have happened when she locked J. in, And something similar can be said for her conduct over the following two days: there is datato affirm that she has self-control, if we take into account the accredited specializationof the boiling oil as a means of announcing evil to J. if he moved (we are not told that she had it at hand, but that she announced this evil to him, which already indicates that she opted for one means over others). For the rest, there are no grounds for excluding the conduct (it is worth reiterating here what was said for unconsciousness).

III. Secondly, let us analyse whether the conduct of both is typical. First, on the level of goal.

A) That of J. can be understood to be typical for the purposes of i) the offence of habitual ill-treatment (art. 173, provided that it was in force at the time), if we consider that it is not seen socially as appropriate or insignificant conduct, but as undesirable because it affects the health, dignity and freedom of the victim. And ii) also for the purposes of the offence of injury, insofar as some of the blows are causal, and by directly affecting health and physical integrity in an undesirable and socially intolerable way, they display a risk inherent to the offence of injury - which in this case does not become an offence given its nature (bruises, and we are not told that it required medical treatment), but it is an offence (art. 617.1)-; risk which is the one that is realised in the resultin view of the fact that there is no other factor of third parties or of the victim himself that has had an influence. Therefore, J.'s conduct is typical as a crime of habitual ill-treatment (art. 173) and as a misdemeanour of injury (art. 617.1).
B) The conduct of F., by locking a person in a locked and barred compartment and keeping him for two days, creates (causally) a risk to that person's freedom of movement (he keeps him for a prolonged period of time in conditions of deprivation of the Schoolto "walk" freely), in a way that can be considered as one of the conducts that the legislator has typified in these crimes (art. 163.1); however, the deprivation lasts less than three days, which raises the question of whether it constitutes the subjectattenuated of art. 163.2; but as this requires that the perpetrator has not achieved the purposehe intended with the detention, and in this case we are told that F. did so "in fear that such episodes would be repeated", by locking him up, he manages to prevent them from being repeated, so we are dealing with the typically relevant risk of the precept of Art. 163.1.
And, secondly, on the subjective level, A) as far as J. is concerned, we can also attribute to him rules of experience regarding the harmfulness of the pushing, hitting, as well as the insulting and humiliating effect that he has been repeatedly exercising on F. The fact that he is an adult and lives with her are datawhich allow us to say that he cannot not know that he was bothering, humiliating, mistreating and even injuring her, as these same behaviours would be perceived as humiliating if a third party were to carry them out against him. It is possible on that basis to impute his conduct to him as intentional, i.e. as subjectively typical. His conduct is therefore wilful misconduct.
C) As far as F. is concerned, it can be seen that he is perfectly familiar with the place, the premises, the only access, the lock, the grille, as well as the aggressiveness of J. All of this is datawhich supports the assertion that F. has rules of experience, in addition to those that every adult has in handling locks, walls, etc., so that he could not have failed to appreciate the risk involved in closing the door and the lock with J. inside. Furthermore, the knowledgeof the risk involved was maintained during the hours of the confinement, as she could not have been unaware that he was inside (even the neighbours perceived it). It is therefore possible to subjectively impute the typical conduct to her at degree scrollwith malice aforethought. Therefore, her conduct is wilful misconduct.

IV. Thirdly, let us assess whether their conduct is unlawful or, on the contrary, whether there are grounds for justification.

A) As regards J.'s conduct, it does not require much argument to state that he has no right whatsoever to treat another person, especially his wife, in this way, and even less so repeatedly. His conduct is therefore unlawful.
B) As far as her conduct is concerned, we could ask ourselves whether she is covered by the justification of legitimate self-defence, since it is not in vain that she acted to prevent the ill-treatment to which she had been subjected on a regular basis by her husband. Is there an unlawful aggression? J. has committed a crime of habitual ill-treatment (art. 173) and a misdemeanour of injury (art. 617.1), as we have already argued. As it is a criminal and intentional unlawful conduct, it seems that F. is in a position to defend himself legitimately; but in order to be protected by legitimate self-defence, the aggression must also be current (constituting at least an imminent evil), that he is on the point of being affected again. On this point doubts arise, as the truth is that at that precise moment she was not being assaulted or mistreated. The fact that she acted out of fear or apprehension "that such episodes would be repeated" does not mean that J. was going to hit or insult F. immediately, let alone that she was doing so at that moment. Therefore, F. is not at statusin a position to act legitimately in self-defence. Nor is it covered by a state of necessity, as F. affects J.'s very personal legal interests (freedom of movement), which would hardly respect the rule of weighing up the evils (as it would cause a greater harm than the one he is trying to avoid at the time). Another thing is that the lamentable state of mistreatment, as well as the fear generated, is relevant to other effects, as we will see below. For the time being, we know that the conduct of both is unlawful.

V. Fourthly, let us analyse whether both subjects of typically unlawful conduct are also culpable.

A) As for J., the datathat we know of the case allow us to affirm that he is a person who moves within normal motivational parameters, like any other person; furthermore, it can be said that he is aware of the rules that prohibit mistreating people and that due to the concurrent circumstances (during the weeks prior to the event) he can be required to act in that sense; on the other hand, nothing is said that he suffered from mental derangement or a disorder that affected his capacity to know the meaning of his actions or sufficient strength of will to resist. Therefore, J. is guilty of the crime of habitual ill-treatment (art. 173) and the misdemeanour of injury (art. 617.1).
B) As far as F. is concerned, we can ask ourselves whether the statusof fear affects his freedom to decide in accordance with the rules, i.e. whether it could influence his guilt in a relevant way. For this, it is necessary that he is aware of the rules prohibiting or prescribing the conduct carried out, i.e. that he is not mistaken about the normative meaning of what he is doing; and furthermore that he possesses sufficient strength of will to be governed by this perception of the rules. On this point, we are told that she acted "in fear that such episodes would be repeated", so that she is afraid, she represents herself as an imminent evil of continuing to be abused and mistreated by J. The fact that it did not happen at that precise moment nor was it going to happen immediately, as we have already argued at purposeof legitimate self-defence (which does not occur), does not mean that she did not internally represent what was going to happen next as an evil. For these purposes, it is convenient to bear in mind that fear is produced in the intramental reality of the subject who suffers it, regardless of whether or not there may be a basis in extramental reality for fearing something. The background of the repeated mistreatment inflicted by J. may well serve to explain the fear of those who live with him. This is what can be said of F.: she has a well-founded representation that she will suffer harm (ill-treatment, insults, humiliation, beatings...) from the person with whom she lives in the same dwelling. Therefore, although she knows the normative meaning of her conduct, although she knows that it is wrong - even a crime - to lock someone in, her will is driven by the fear of suffering harm and by the desire to avoid it. Consequently, I am inclined to think that F. would not be guilty of the act of locking J. in the room on the roof, since there is a statusof fear, which would lead us to exempt him from the requirement to act in accordance with the known rule(art. 20.6): no other conduct is required because there was an statusof insurmountable fear. However, this could be affirmed for the specific act of locking him up, but it is doubtful that the fear lasted for two days; and it is reasonable to think that he should have notified the authorities so that they could put an end to the status(with the adoption of precautionary measures of restraint, for example). In other words, the strange motivation rules and regulationsof F. can lead us to exonerate him at the moment of locking J. up, but not in the subsequent phase of maintaining the statuscreated by the locking up. And as the offence is of a permanent nature, i.e. its consummation is prolonged in time as long as the state created at the first moment lasts, F. would be guilty of what follows. In other words: that his fear starts as insurmountable (with exonerating effects), but becomes surmountable (not exonerating). However, it does not seem that the motivation becomes completely normal, but that it is still affected in some way, so that we could argue an attenuation: via the incomplete defence of insurmountable fear (art. 20.6 in relation to 21.1.1).

VI. Finally, fifthly, on the punishability of the conducts, it should be said that there is no factor that conditions the sanction. The relationship of kinship does not operate as a mitigating or exonerating factor in crimes involving violence (on the contrary, it would, depending on the case, aggravate responsibility in terms of criminality). Therefore, both will be punishable.
In final, J. must answer for a crime of habitual ill-treatment (art. 173) and a misdemeanour of injury (art. 617.1). And F. must answer for the crime of illegal detention (art. 163.1), with a mitigated penalty (reduction by one or two Degrees) due to the concurrence of an incomplete exonerating circumstance of insurmountable fear.