legal analysis of the framework law1 on integrated protection

LEGAL ANALYSIS OF THE FRAMEWORK LAW1 ON
INTEGRATED PROTECTION MEASURES AGAINST
GENDER VIOLENCE IN SPAIN
FROM THE FEMINIST VIEWPOINT.
María Duran Febrer2
INTRODUCTION:
The term "gender violence" is used to define the violence men use to
maintain women in subordination. This violence takes different forms, such as
abuse in close relationships, gender-based moral harassment and sexual
harassment in the workplace, as well and sexual aggression in the social
context.
At first sight, it may seem that “gender violence" and "domestic
violence" are equivalent terms, because in the domestic domain women are by
far the main recipients of violence. However, there are essential differences,
because legal protection for domestic violence victims arises from protection
for the family, the term “gender violence” considers women as citizens on a
par with their male counterparts and emphasises the democratic shortcoming
implicit in the fact that the state does not guarantee women the full enjoyment
of the fundamental right to life, freedom, equality and safety.
The "gender violence" concept has encountered resistance in its
inclusion in statute law due to the abstract and apparently neutral concept of
the subject of law. Laws have been passed addressing domestic violence but
until now we didn’t have in Spain a national law3 clearly aimed at eradicating
violence against women4.
1
Organic Act 1/2004 of 28 December on Integrated Protection Measures against Gender Violence, published
BOE –Official State Gazette nº 313, 29.12.04.
2
Lawyer, secretary of EWLA, former president of the Themis Association of Jurist Women.
3
The Autonomous Communities of Castilla la Mancha, Navarra, Canary islands and Cantabria have laws for
the protection of abused women or gender-based violence victims.
4
Even though women are clearly the main victims of domestic violence, to date the legislator does not
recognise her as the only victim and includes a range of relatives or cohabitants of the perpetrator (art. 153
and 173.2 of the Spanish Criminal Code).
1
At the international level, violence against women is approached in the
so-called “soft laws” which comprises the Declarations of the United Nations
Assembly and other institutions and recommendations in the European context
(Assembly of the Council of Europe, EU Parliamentary Assembly). Said
declarations, resolutions and recommendations make explicit reference to
gender violence. These “soft” laws cannot be invoked as applicable law but can
be utilised to interpret national statute law, according to the European
Community Court of Justice in the Grimaldi sentence dated December 13,
1989.
The international treaties arising out of the United Nations, the Council
of Europe or the European Union do not name women as recipients of gender
violence. This apparent omission has a dual explanation, ie. the period of time
in which they were signed and the inclusion of gender violence within the
sexual discrimination concept. The 1979 “Convention for The Elimination of All
Forms of Discrimination against Women” (CEDAW) does not include explicit
references to gender violence; however, it has interpreted that violence
against women is a form of sexual discrimination and, as such, must be
considered to be included in the Convention.5
The Treaty establishing a Constitution for Europe, approved by the
heads of government of the 25 EU member states, does not explicitly include
the objective6 of fighting violence against women even though it was one of
the claims of the European Women Lawyers Association (EWLA). The
explanation for this omission is found in the final document, which considers
that violence against women is an extreme expression of inequality which must
be addressed in all European Union policies (article 116 of the Treaty7).
The only international treaty which explicitly includes gender violence is
the “Inter-American Convention for Preventing, Punishing and Eradicating
Violence against Women”, approved in 1994 by the Organisation of American
States.8 The importance of this treaty lies in that, on the one hand, it is unique
in so far as it refers to the right of women to live free of violence, and on the
other it legitimates any citizen of a signatory state to report any noncompliance to the Commission, the decisions of which can be appealed before
the American Human Rights Court.9
Section 5 of Decision A4-250/1997 of the European Parliament on "Zero
Tolerance” calls on member states to introduce specific legislation aimed at
5
In 1992, CEDAW made a recommendation recognising gender violence as a fundamental violation of
human rights and requesting governments to implement preventive and educational policies on the roles and
unequal position of women and men.
6
Article I-3)
7
The declaration appended to the Final Document No. 13, referred to art. 116, states that “the Union shall
endeavour in its policies to fight domestica violence in all its forms. It is necessary that member states adopt
all measures for preventing and punishing these crimes and providing support and protection to victims”.
8
"CONVENCION DE BELEN DO PARA". This convention has not been ratified by the United States or Canada.
9
Jurisprudence of the American Human Rights Court has established the doctrine of due diligence in the
Velásquez Rodríguez case dated July 29, 1988 and the definition of damages to individual life projects in the
Loyaza Tamayo case dated January 10, 1999.
2
protecting victims of violence based on their belonging to the female gender in
their penal code of law and in family law, and to introduce specific regulations
against gender-based harassment of women.
The associations of Spanish women have called for a comprehensive law
against gender violence since 199310. A number of campaigns were carried out
until 1998, when the Socialist Party took up the challenge and invited said
associations to prepare the first draft law against gender violence, filed at
Parliament by the Socialist Parliamentary Group on December 16, 2001. A vote
was taken to accept the proposal, which was finally rejected due to the votes
of the ruling Popular Party.
The European women lawyers, also has a influence in this Law, the work
in the Daphne “Proteger”, the comparative practices and legislations about
gender violence in home, has some recommendations who there are in it
Law11.
The Organic Act 1/2004 dated December 28 on integrated protection
measures against gender violence establishes in its first article:
1.
The purpose of this Act is to combat the violence exercised against women by their
present or former spouses or by men with whom they maintain or have maintained
analogous affective relations, with or without cohabitation, as an expression of
discrimination, the situation of inequality and the power relations prevailing between
the sexes.
2. (…)
3. The gender violence to which this Act refers encompasses all acts of physical and
psychological violence, including offences against sexual liberty, threats, coercion
and the arbitrary deprivation of liberty.
Said law has the purpose of fighting violence against women by their
partners due to the high amount of cases and in the consequences it has on
the lives and the health of women.
Said law guarantees rights to all women who have suffered gender
violence in Spain, regardless of their nationality and their legal situation in
Spain.
right:
The Organical Act established in the article 17 the guarantee of victim’s
“1. All women suffering gender violence, regardless of their origin, religion or any other
personal or social condition or particular, are guaranteed the rights recognised herein.
2. The information, integrated social assistance and legal assistance to gender violence
victims envisaged in this chapter shall help give real and effective expression to their
10
In December 1993, a draft resolution was presented to the National Congress of Women Lawyers for
setting up a committee for drafting a comprehensive law on violence against women which should include
civil, criminal and administrative measures.
11
See the Ewla Congress in Sevilla at panel Gender Violence
3
constitutional rights to physical and moral integrity, freedom, security and equality and
non discrimination on the grounds of sex”.
This Act has different parts:
a) A preliminary Title who define the purpose of the act and guiding
principles.
b) Sensitisation, protection and detection measures.
c) Measures in mater of education.
d) Measures in mater of advertising and the communication media.
e) Measures in healthcare
f) The right of female victims of gender violence.
g) The Institutional Protection.
h) Protection under Criminal Law.
i) On Violence against Women Courts
j) Judicial measures of victim protection and security
k) The Public Prosecutor for cases of Violence against Women.
THE NEED FOR A COMPREHENSIVE LAW AGAINST GENDER VIOLENCE:
What is so unique about gender violence that requires special laws?
Of all forms of unlawful violence, gender violence is the only one which
affects half of humanity. In varying degrees, all women are the targets of this
type of violence because it restricts freedom through learning processes in
childhood which set limits on girls but not on boys. In addition, most women
have been at some point the targets of verbal violence, ranging from the
apparently innocent compliment to lewd obscenities. Phrases and jokes which
scorn women are accepted and sometimes even encouraged.
Certain cultural expressions praise of murder or rapes of women or girls,
concealing the violence of the message under an appearance of mysticism or
spirituality, such as in the case of Shakespeare's Othello, songs like “El Preso
Número Nueve”, “La Maté porque era mía”, novels like “Lolita”, in addition to
religious and other type of icons. In these cultural expressions, emotions
overcome reason (a basic element of critical analysis) and this prevents a
critique of the incitement to violence.
The above described tolerance related to violence against women, which
could be defined as “environmental violence”, becomes direct violence when
the need arises for women to affirm their autonomy and “renegotiate their
place in the world”. However, environmental violence is widespread, to the
point that it configures a framework of tolerance of which the judges are not
always aware when assessing evidence.
Men’s control of women's bodies, their authority in the private domain
and the denial of any authority for women evidence a democratic deficit,
4
substantiated in the obstacles that women continue to encounter in the
enjoyment of their citizenship, which is derived from the recognition of their
fundamental right to equality and non-discrimination.
A basic principle of democracy is respect for the dignity of all
individuals12, and Spanish society cannot continue tolerating the exclusion of
women from this basic tenet.
Article 9.2 of the Spanish Constitution requires public authorities to
remove any obstacle which prevents or hinders the full participation of citizens
in the social, political and economic life. In this regard, a meaningful sentence
was issued by the First Court of the Constitutional Tribunal No. 216 dated
November 14, 1991, which establishes in the Fifth Legal explanation that:
“The bearing of the mandate contained in Art. 9.2 enclosed in Art. 1413 (in what
concerns public authorities) involves an interpretation of the latter, for example in the sense
that the action of favouring certain groups (which historically have been excluded so that, by
means of a special and more favourable treatment, are able to compensate and moderate their
substantial inequality) cannot be construed as discriminatory and forbidden by the Constitution.
Rather the opposite should hold true. This position has repeatedly been stated by this Tribunal
(SSTC 128/1987, 166/1988, 19/1989 and 145/1991, which deal with alleged gender
discriminations and are referred to here as doctrine references).”
In turn, the Fourth legal explanation of Sentence 39 dated February 14,
2002 of the Constitutional Tribunal Main Court states that:
“(...) As this Court has declared since STC 22/1981, dated July 2, invoking the doctrine
of the European Human Rights Court in relation to Article 14 CEDH, the equality principle does
not imply in all cases an equal legal treatment detached from any differentiating and legally
relevant element, so that not all inequalities in treatment for a specific matter involve an
infringement of the mandate set forth in Article 14 CE. Instead, an infringement would take
place when a difference is introduced in situations which can be considered to be equal without
providing objective and reasonable grounds for said difference. By way of general rule, the
equality principle requires the applicaiton of identical juridical consequences for identical alleged
facts. Therefore, this prevents the utilisation of differentiating elements which can be deemed to
be arbitrary or lacking reasonable grounds...”
A comprehensive law against gender violence is not only a positive
action measure; it should include positive action measures legitimated by the
Constitutional body of law, but also should address the effectiveness of
fundamental rights.
Gender violence attacks the dignity of women as well as other
fundamental legal principles such as the right to life and physical and moral
integrity, freedom and safety.
Framework Law 1/2004 on Integrated Measures Against Gender Violence
is based on the right of women to live without the threat of male violence while
living with a male partner or after.
12
Part of the speech by Soledad Murillo de la Vega, General Secretary of Equality Policies of the Government
at the General Judiciary Council on September 27, 2004.
13
Right to equality and non discrimination based gender.
5
Said RIGHT TO LIVE WITHOUT GENDER VIOLENCE is based on the
central role of women, the due diligence of the state for prevention, protection,
punishment and compensation, as well as on the restoration of the vital project
of the woman who has been the victim of this kind of violence.
The central position of women
If the State has the duty of eradicating gender violence, the starting
point for implementing specific measures should be the priorities and needs of
women to prevent or put an end to this type of violence.
Placing women at the centre of the issue makes it easier to identify
priorities and changes to be made in the laws in order to restore full citizenship
rights to them. To do this, it is necessary to take into account the
differentiated manner in which women and men are socialized, the extra value
given to masculine activities and the denial of female authority. In addition,
the “women at the centre" approach requires taking into account whether the
measures perpetuate traditional roles or bring men and women closer to
genuine equality.
Said comprehensive law applies the above approach in penal law by
establishing specific offences such as threat, harassment and continued abuse
by the spouse.
The Organic Act 1/2004 has a penal prevision at the articles:
-
36 Protection against injuri
-
37 Protection against abuse
-
38 Protection against threats.
-
39 Protection against coercion
“The injuries specified in section 1 of the preceding article shall receive a custodial
sentence of two to five years depending on the sequels or the risk engendered:
(…) 3º If the victims was or had been the wife of the aggressor or shared an analogous
affective relationship, with or without cohabitation. (article 148 Penal Code)
14
(…) If the victim was an especially vulnerable person living with the aggressor
This typification is related to the changes which took place in Spanish
law, which went from regulating the rights of the husband based on “correcting
the wife”15 and criminalizing “female disobedience”16 to the absolute prohibition
of any type of violence against women.
14
the inclusion of particularly vulnerable individuals in criminal offences has a criticism at feminist point of
view.. The consensus of Parliament in the approval of the draft law has required the introduction of some
points which may disperse the attention on gender violence, such as other passive subject of domestic
violence which would be better treated in the Minors Protection Law. It wasn’t a prevision when the Spanish
Government presented the proposal at Parliament, but it was a need condition for a quorum in the vote.
15
Until 1975
16
Until 1999 it isn’t definitively of the Spanish Legislation.
6
Threats and harassment of current of former spouses or partners
constitutes the turning point beyond which there is no return from an
escalation in violence if said actions are not stopped radically and if the
infringement of the fundamental rights to freedom and safety is tolerated. It is
precisely the margin of tolerance of environmental violence in our society
which leads judges to minimise the importance of said violence in court.
All reports involving abuse of minors or the elderly are strongly rejected
by society17, but when a woman files a complaint she infringes a patriarchal
rule which continues to be prevalent in our society and which requires her to
remain silent and to endure the pain caused by a man’s violent behaviour.
Unlike other offences, when a woman reports violent behaviour of her spouse,
officials do not give her credibility and choose to believe her male partner
instead.
The lack of authority in women is the result of their disempowerment.
Borrowing an economic concept, power is held by those who have the ability to
mobilise resources of different types and different institutions to reach a
specific objective18. accordingly, gender relationships prevent women from
mobilising resources to achieve equality and non-discrimination amongst
institutions such as the market, the church and the legal system.
The alarm caused in certain political and legal circles by the approval of
specific criminal offences related to intimidatory violence against women
should be no surprise because it is based on the premise that “the husband is
the perfect subject of legal proceedings, the potential father, the paradigm of
human models which establishes good faith and care for things19. This virtual
reality permeates all the branches of law and is the source of all resistances to
parity laws and to the admission that human beings have sex and that
different groups of individuals (the elderly, children, disabled, adolescents,
etc.) are made up both by men and women.
A specific sector of the Spanish Legal Doctrine has emphasised the term
“wife” or “woman” as a discriminatory element towards men who could also
find themselves in the same situation. However, men cannot be in the same
situation because any man enjoys the power which institutions have granted
him, whereas women continue to be disempowered20.
Threats and harassment do not become serious because the victim is a
woman but because they are the expression of a violent relationship based on
17
Research by the Themis Association of Jurist Women, “Family Violence in the Judiciary Domain” which
analyses 1,443 cases in Castilla la Mancha between 1999 and 2000 evidences that 94% of attacks against
parents and 81% of attacks against children are carried out by men.
18
Mujeres y Economía, Cristina Carrasco (Ed) Icaria 1999, Idoye Zabala page 358
19
Juridical analysis of violence against women. IAM Updated edition 2004. Ana Rubio Castro, page 42
20
If we take a look at daily life, we can see how women are paid 30 percent less than men for work of the
same value and the absence of reconciliation between family and work. The United Nations has declared that
women account for 70 percent of all poor people in the world.
7
the superiority of the man21. Threat and harassment are the instruments used
by violent men to maintain women in submission.
The constitutionality of said criminal offences has been questioned as
they may involve discrimination against men due to the application of greater
punishments when the offender is a man22.
The specific nature of these offences slightly increases the initial
sentence from three to six months in prison. This is not an exception in our
Penal Code; For Instance, Framework Law 15/03 increases the punishment for
threats where armed groups, organisations of terrorists publicly claim the
authorship of violent actions (art. 170.2 of the Spanish Penal Code).
The penal code is regarded as the other side of the Constitution because
it regulates the consequences of any violation of constitutional rights. Whereas
the Constitution establishes the main principles and fundamental rights of
individuals, criminal law establishes the actions or omissions which are
unacceptable for society and the punishments for any infringement of said
fundamental rights.
In comparative law we find the example of Sweden. Under the heading
“Offences against Freedom and Peace”, section 4.c of the Swedish criminal
code establishes an offence such as “Serious Violation of a Woman's Integrity”,
in which the active subject is a man and the passive subject is his wife, former
wife, common-law wife or former common-law wife.
The experience in Sweden, where this offence has been applied since
1998, regulates and fulfils at least the following functions: the first, aimed at
the active subject, makes it clear that violence against women is totally
forbidden; the second, aimed at political powers, renders statistics more
objective, and finally it allows for a review of judicial action in cases of violence
against women.
In addition to being an active legal tool, the specific offence of violence
against women fulfils an educational function, making it clear that there are no
justifications: it is simply forbidden.
Due Diligence
The Amnesty International report for 2000 on gender violence and the
report of the special United Nations rapporteur for gender violence23 from 1996
and 1998 evidence the need for due diligence by governments for doing
21
Report by Miguel Lorente Acosta on the framework law draft project for comprehensive protection
measures against gender violence.
22
María Luisa Balaguer, Professor of Constitutional Law, expresses her “surprise at the attempts to disqualify
the draft law against gender violence utilising legal arguments instead of political, social or even medical
arguments, on the grounds that equality is equal treatment by lawmakers for the same actions. This
statement ignores the jurisprudence of the Constitutional Court which has admitted compensatory inequality
as the best way to achieve true equality in a society which (and here I use my own words) has subjected
women to invisibility, margination, historical nonexistence, and accordingly to the domination”.
Compensatory inequality and the rights to equality. See http://www.redfeminista.org.
23
Radica Comwaraswamy
8
awaywith this form of violence against women. The action of the judiciary is
crucial in all states of law, and the rapporteur emphasises the criminal nature
of gender violence and the need of applying the law with due diligence,
investigating in full depth all infringements of human rights, prosecuting
offenders and punishing them according to the positive laws of each country,
establishing a compensation for damages and guaranteeing the effectiveness
thereof. Said special United Nations rapporteur states that:
“23. The principle of due diligence is being recognised at the international level. In
accordance with article 4 of the Declaration for the Elimination of Violence Against Women,
governments must proceed with due diligence in order to prevent, investigate and punish
according to the law all actions of violence against women, carried out by individuals or by the
state.”
In article 1, the Spanish Integrated law states that:
2. The present Act establishes integrated protection measures whose goal is to prevent,
punish and eradicate this violence and lend assistance to its victims.
The judicature is one of the powers of a state of law with the mission of
guaranteeing constitutional rights. Article 9.2 of the Constitution requires it to
remove obstacles which prevent or hinder the full enjoyment of citizenship
rights for women; for a better fulfilment of this mission, this law establishes
the Court of Violence against Women.
This court is competent in all of cases who there is gender violence by
partner, marriage, couple o ex..
The Title V “Judicial Protection” Chapter I “On Violence against Women
Court” regulate the structure and civil and penal competences of this court
(articles 43 to 60)
The article 44 to indicate the competence of the violence against women
courts:
“1. The Violence against Women Courts shall deal with the following cases under
criminal law in accordance with the procedures and appeals set out in the Criminal
Procedure Act:
a) The investigation of cases involving the crimes listed in the Criminal Code relative to
murder, injury, injury to the foetus, crimes against a person's freedom, against a
person's moral integrity, against a person's sexual freedom and inviolability, and any
other crime involving violence or intimidation, when it is committed against a
person who is or has been his wife or shares or has shared an analogous affective
relationship, with or without cohabitation, and those committed against his
descendents or those of his spouse or cohabiting partner, or against minors or
incapacitated persons living with him or under the parental authority, guardianship,
custody or foster care of his spouse or cohabiting partner, when an act of gender
violence has also occurred.
b) The investigation of cases involving crimes against family rights and duties, when
the victim is among the persons specified in a) above.
c) Adoption of the corresponding victim protection orders notwithstanding the
competences assigned to the Duty Judge.
9
d) The hearing and determination of responsibility for offences listed under titles I and
II of book III of the Criminal Code, when the victim is among the persons specified
under a) above.
2. The Violence against Women Courts shall deal with the following cases under civil
law in accordance with the procedures and appeals set out in the Civil Procedure Act:
a)
b)
c)
d)
Those of filiation, maternity and paternity.
Those of matrimonial annulment, separation and divorce.
Those involving parent-child relations.
Those whose purpose is the adoption or modification of important measures affecting
the family.
e) Those exclusively concerning the guardianship and custody of minors or alimony
claims by one parent against the other on behalf of minors.
f) Those concerning obligatory consent in cases of adoption.
g) The contesting of administrative decisions regarding the protection of minors.
3. The Violence against Women Courts will have sole and exclusive powers under
civil law when all the following requisites simultaneously obtain:
a) That of being a civil process whose purpose is one of the matters stated in 2 of this
article.
b) That one of the parties in the civil process is a victim of acts of gender violence
under the terms referred to in 1 a) of the present article.
c) That one of the parties in the civil process stands accused of perpetrating acts of
gender violence or aiding or abetting in the same.
d) That criminal proceedings have been brought before the Violence against Women
Judge for an act of violence against the woman, or a protection order issued in such
respect.
4. When a Judge is confident that the acts presented do not constitute an expression
of gender violence, he or she may refuse leave to proceed in respect of the claim,
referring it to the competent judicial body.
5. Mediation is prohibited in all the above cases.”
Said courts merge civil and penal jurisdiction in all cases based on
violent actions against women in the domestic environment. This means that,
on the one hand, the tendency is to avoid the secondary victimisation derived
from the fact that women must repeat their statements at different judiciary
levels, and on the other it involves an optimisation of resources because the
same juridical operators who intervene in the criminal proceedings will also
deal with the civil suit, in full knowledge of the violent actions which have
taken place.
It would have been better to establish a special jurisdiction which could
be called “Equality Jurisdiction”24. if the goal is to find a better and clearer line
for judicial action against gender violence (sexual murders, abuse, injuries,
gender-based moral harassment, sexual harassment, sexual attack, trafficking
of women for sexual exploitation, etc.), a specific jurisdiction can resolve all
civil, criminal, and administrative and labour controversies related to violence.
At present four jurisdictions intervene in these cases: the civil jurisdiction to
resolve the disputes related to Family Law, the criminal jurisdiction to
prosecute offences, the social jurisdiction for dealing with a refusal of the
24
In the same way as the labour jurisdiction was established.
10
active insertion benefits and finally the administrative jurisdiction in the
rejection of an independent residence permit for immigrant women and for
gender violence victims who are not given preference for obtaining public
housing. The Spanish law has chosen an intermediate position between the
separation of jurisdictions and a specific jurisdiction. In this sense, we can be
satisfied for this first step towards a special jurisdiction25 while making a
critical consideration about the regulation of the Courts For Violence against
Women:
-
If there is no specialisation with adequate training, the judges will not
have the multidisciplinary knowledge that the subject requires.
Training of competent judges must comprise several branches of
social sciences so that the future magistrates of the Court of Violence
against Women are knowledgeable about the various aspects of
gender violence.
-
The Court of Violence against Women should be open permanently;
otherwise, it may happen that most of the complaints, initial
proceedings and protection measures will take place in the police
Court, and this would be contrary to the spirit of the law26
Said law also foresees the specialisation of public prosecutors. The
appointment by the General State Prosecutor of a special prosecutor for
violence against women and the establishment of sections against this form of
violence in the Audiencia Nacional (High Court), Court of Justice and Provincial
Courts will allow for the specialisation of public prosecutors.
Said law requires security forces to control and fulfil the protection
orders and other security measures, entrusting to local police (municipal
security forces, in cooperation with the national police) the supervision and
protection of protected women.
Said law has previsions in protocols of conduct for units of forensic
damage’s evaluations
of victims gender violence. The Second additional
Provision:
“The Government and the Autonomous Communities exercising devolved powers in legal
matters shall organise integrated forensic evaluation units within their respective coroner's services
in charge of designing global, integrated protocols of conduct for cases of gender violence”
This institutional supervision shall be applied to the Special Government
Delegation on Violence against Women and the State Observatory on Violence
against Women (articles 29 and 30).
25
Before October 2005 directive 2002 will be transposed, involving the inclusion in the Spanish legal system
of the new figures which prohibit gender-based moral harassment or sexual harassment.
26
The 8th Latin American Congress of Constitutional Law, held on December 4, 2003 in Seville, discussed
the experience of law 1887 in Costa Rica, which 10 years ago established special Courts against domestic
violence which are permanently open. According to Rubén Hernández, Professor of Costa Rica Constitutional
Law, domestic violence has been reduced between 30 and 40 percent. www.redfeminista.org
.
11
Restoration of the vital project
Gender violence does not only cause physical injuries and psychological
damage to its victims, it also breaks an individual’s vital project.
Before being abused, women went to school and developed abilities
which allowed them to entertain expectations about a career, in addition to a
personal and social life, with a reasonable probability of successes.
The consequences of violence are far reaching. In October 2002, the
World Health Organisation published a “World Report on Violence and Health”
stating that the consequences of domestic violence seriously affect the health
and welfare of a community. Sharing a household with a violent man damages
women to the extent of erasing their self-esteem and social abilities. These
women have a high risk of suffering depression, chronic pain, psychological
and social ailments, a reduction of up to 10 years in their life expectancy and,
in addition, account for 40 percent of suicides.
Gender violence will break any woman’s vital project because it modifies
the conditions in which she lives her life. The alterations in the objective
environment of the victim and the relationship with the perpetrator extend in
time long after the end of a violent episode, depriving women of the affection
and satisfaction which allow her to enjoy and give meaning to her life.
Violence against women does not only have serious effects on the health
of a woman, it also reduces her autonomy with serious consequences for her
professional career. Abuse is not restricted to the home. The harassment of a
victim at work includes all kind of behaviour which diminishes her ability to do
her work properly. These victims are usually watched, followed and harassed
with phone calls or the physical presence of the violent partner, who does not
respect either the time or the place of work.
The doctrine of restoration of the vital project is established in sentences
dated November 27 1998 and January and 1999 of the InterAmerican Human
Rights Court, among others in the Loyaza Tamayo case27.
27
The InterAmerican Human Rights Court states that:
147. In what concerns claims for damages to the vital project, it should be said that this concept
has been analysed by recent doctrine and jurisprudence. It is different to “emerging damages” and “loss of
benefits”. It certainly does not correspond to the immediate and direct loss of income as is the case of
“emerging damages”. In what concerns loss of benefits, we must point out that while this refers exclusively
to the loss of future income, which can be quantified on the basis of specific and objective indicators, the
“vital project” comprises the comprehensive fulfilment of the subject, considering her vocation, abilities,
circumstances, potential and aspirations allowing her to establish reasonable expectations within her reach.
12
Said changes in the conditions of a victim’s life must be repaired, but
compensations for material and moral damages are not enough to restore a
vital project. For this reason, the Comprehensive Law recognises social rights
in the field of health, work and housing.
The article 2, the guiding principles of the law establish that:
“This Act deploys a comprehensive battery of measures in pursuit of the following ends:
a) Strengthen preventive awareness among citizens, providing the public authorities with
effective instruments to fulfil this goal in the educational, social services, health,
advertising and media spheres.
b) Establish the rights of women suffering gender violence, which shall be enforceable
through the public authorities, to ensure them rapid, transparent and effective access to
the services provided.
c) Improve the provision of information, care, crisis, support and integrated recovery
services at least to the minimum standards required under the objectives of this Act, and
establish a system to effectively coordinate existing services at regional and municipal
levels.
d) Guarantee employment conditions, in the private and public sectors, which reconcile
contractual requirements with the circumstances of workers or civil servants suffering
gender violence.
e) Guarantee economic rights for women suffering gender violence in order to facilitate
their social integration.
f) Establish a comprehensive system of institutional protection whereby the General State
Administration, through the Special Government Delegation on Violence against Women
in conjunction with the State Observatory on Violence against Women, promotes public
policies designed to offer safeguards to the victims of gender violence.
g) Reinforce the criminal and procedural framework in place to ensure that gender violence
victims are accorded full protection by the courts.
h) Coordinate the range of resources and instruments deployed by different public
authorities to maximise the prevention of gender violence incidents, and ensure that,
when they occur, the authors receive appropriate penalties.
i) Promote the collaboration and involvement of civil entities, associations and
organisations engaged in the fight against gender violence.
j) Encourage the specialisation of the professional groups providing information, care and
protection to victims.
k)
Uphold the principle of across-the-board application, so the specific needs and
demands of all women suffering gender violence are taken into account.”
As regards the social rights regulated by the law, the following are most
relevant:
a) The right to information (article 18)
148. The "vital project " is linked to the concept of personal realisation, which in turn is based on
the options that the subject may have to lead her life and attain the objectives she has set herself. In fact,
the options are the expression and guarantee of freedom. It can hardly be said that a person is truly free if
she lacks options to direct her existence towards its natural combination. In themselves, these options have
a high existential value. Accordingly, their annullment or reduction involves an objective lessening of her
freedom and the loss of a value which cannot be ignored by this Court.
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1.
2.
3.
Female victims of gender violence have the right to receive comprehensive
information and advice adapted to their personal circumstances, through the
services, agencies and offices provided by the public authorities.
The said information shall include the measures envisaged in this Act for their
protection and security, and the rights and assistance provided therein, along with
details on the location of care, crisis, support and integrated recovery services.
All necessary steps will be taken to ensure disabled women suffering violence full
access to information on their rights and the resources at their disposal. Such
information shall be provided in a format that is accessible and understandable for
people suffering disabilities, such as sign language or other communication modes or
options, including alternative or augmentative systems.
Likewise, the means shall be put in place so women suffering gender violence whose
personal and/or social circumstances may hinder their access to information are
assured the effective exercise of this right.
b) The right to free legal counsel and aid in the legal action, for women
who justify lack of means for litigating (article 19).
c)
The rights of the victim related to work. In this area the law foresees
that a working woman can reduce her working timetable, hold in
abeyance her labour contract for six months while receiving
unemployment benefits or extinguish the Labour contract receiving
the same unemployment benefits as a wrongful dismissal (articles 21
to 23)
d) The right of women civil servants victims of gender violence (article
24 to 25).
e) The rights of a woman who works independently o self employed
worked, who is forced to suspend her activity due to the violence she
suffers; in these cases, she would be exempted from paying social
security for six months while retraining all benefits (article 21.5).
f) The right to comprehensive social assistance (article 19).
g) The right to receive economic aids (article 27).
h) Preferential access to public housing and public homes for the elderly
(article 28).
In order to access the rights of paragraphs c) d) e) and g), the victim
must be in possession of a protection order issued by the judge or a report by
the public prosecutor stating that there are indications of gender violence in
her home (article 23).
For the first time, women who are victims of gender violence and living
in Spain, have a range of recognised social rights which, adequately applied,
can achieve an effective end of the violence they suffer.
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BY WAY OF CONCLUSION:
The associations of women have been instrumental in making gender
violence visible, in providing attention to victims and in evidencing the need of
a comprehensive Law against gender violence, as acknowledged by the
Preamble of said law.
“Aggressions against women have a particular incidence in the reality of Spain, in that
we now have a greater awareness than before about their repercussions, thanks largely to the
work of women's organisations in their fight against all forms of gender violence. They no longer
constitute an "invisible crime" but are the object of collective rejection and a clear cause of social
alarm”
The comprehensive Law is comparable to a polyhedron in which multiple
faces are joined in the common objective of eradicating gender violence. The
rights of women who are victims of this violence constitute the backbone of
this law. Prevention, school education and awareness raising of the general
public together with an adequate control of the image of women given by the
media comprises an additional pillar. Other cornerstones of the law are early
detection of domestic violence through health services, the establishment of
specific offences and the Courts of Violence against Women. The coordination
of security forces with other public administrations and the establishment of
measures for improving the protection and safety of victims are one of the
most important issues regulated by this law. Finally, the government
delegation and the Observatory are the channels for the participation of social
organisations, particularly women's associations, for promoting and supervising
the measures set forth by the law.
Prevention is focused on education on equality and on peaceful
resolution of conflicts in all areas of personal, family and social life. It is
obvious that two factors come to bear on violence against women: the
imbalance of power between both genders and the differences in physical
strength. Education in peaceful resolution of conflicts teaches abilities based on
negotiation instead of imposition. The future generations will be able to receive
this education at an early stage.
Another highly positive aspect is that the measures foreseen by the law
shall be reviewed three years after the law becomes valid by the government
jointly with the autonomous communities. Their report shall be discussed in
Parliament. This evaluation will surely optimise the allocation of resources and
will also ensure democratic plurality and the participation of regional
administrations.
Women's organisations are actively legitimated to initiate lawsuits
against sexist advertising and will be members of the National Education
Council and the National Observatory for Gender Violence, having in the latter
full voting and speaking rights.
Even though the law is a magnificent legal tool which will probably allow
abused women to enjoy greater autonomy and freedom, some critical points
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can be made from the feminist viewpoint: the protection foreseen by the law
covers only women who are victims of violence by their partner, excluding
other forms of gender violence which the feminist movement has always
maintained should be treated in the same way.
The main challenge for the law is its applicability by legal operators,
which should yield results in the short term28.
The applicability of the law will depend on how the agents in charge of
eradicating violence assume it, on trade unions taking it into account in their
collective bargaining, on hospitals and primary health care centres being aware
of its content, on education Councils remembering the need of applying the
guidelines that this law set forth regarding education, that juridical operators
interpret it taking into account article 9.2 of the Spanish Constitution and on
women associations promoting the law until the extreme inequality which
sustains gender violence is redressed.
The development of this law requires the commitment of the state, the
autonomous communities and the municipal authorities, with adequate
budgetary allocations.
The approval of the law does not signify an imminent end of the murders
of women but it will be a good juridical tool for women to put a safe end to
violence in their homes.
Maria Duran Febrer
[email protected]
Madrid, February 2005
This has been published in “Articulo 14” issue 17 of the Andalusian Women's Institute.
28
Ana Rubio Castro says that “the force with which a law is applied depends on the way in which it is
accepted by those who have to apply it and on whether the users consider it a guide for action”. Legal
analysis of violence against women, guide for juridical operators. IAM (2003) page 15.
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