Gender Inequality: Criminal Code

Gender inequality: Criminal Code

Introduction

Gender violence is a phenomenon that has been gaining interest little by little and has not left the controversies behind. Starting from the first public appearance of a victim of gender violence on television in 1997, Ana Orantes, who first told the media his agonizing experience with his mistreated for forty years, her husband (who ended up withHis life thirteen days later), there are many media cases that have influenced the population awareness about the need to regulate, specifically the phenomenon of gender violence.

Following this line, Organic Law 1/2004, of December 28, on comprehensive protection measures against gender violence, in which the behaviors subject to gender violence were created, as well as the list of possiblepassive subjects of this type of violence. Its entry into force had effects on the rest of the legal system, directly affecting the reform on the drafting of various types collected in the Criminal Code.

The objective here focuses on responding throughout this work to the following issues: Has the phenomenon been regulated correctly? Does this regulation respond to the demand for special protection for women because of their kind? What happens when a crime is committed for gender reasons but there is no affective link between the aggressor and the victim? Does some sector of the population negatively affect the population? Do you criminalize men with it? Are cases of cross violence in the couple penalize?

Developing

As noted above, the introduction of the LOMPIVG in our domestic law brought as a consequence various modifications of our legal system, specifically, in the Criminal Code. To begin, it is necessary to make it clear what should be understood as gender violence according to the LOMPIVG, because it will be what, therefore, understand how such our Criminal Code. 

This law, in its article 1 defines which behaviors are part of gender violence, as well as the possible passive subjects of this type of violence, also pointing out that this violence is the “manifestation of discrimination, the situation of inequality and relationsof men’s power over women, which is exercised on them by those who are or have been their spouses or those who are or have been linked to them by similar affectivity relationships ”.

Therefore, if we attend to the literal writing of the LOMPIVG, the scope of protection of gender violence focuses on the specifically protection of women in behaviors that threaten their physical, psychological and moral, sexual freedom andfreedom, in cases where the aggressor is or has been a male with whom it has maintained an affectivity relationship.

What will be analyzed below is what cases and how this content has been extrapolated to our Criminal Code. To do this, the study of the special part of the Criminal Code will begin, where we will specify the behaviors that are typified by putting greater emphasis and therefore, greater penalty depending on the gender to subsequently analyze how these behaviors can affect the general partof the aforementioned text.

The gender in the special part of the Criminal Code.

The importance of the analysis of the special part of the Criminal Code (Book II), is based on the need to identify those criminal types in which, depending on the active and passive subject involved in it, they will mean an aggravation of the typebasic to which they refer. In this specific case, reference will be made to the different aggravated criminal types when it is understood committed for gender reasons.

First, we find within the so -called crimes against physical or psychic integrity, an aggravated type of injuries in the event that the victim is a woman with whom the aggressor has or was linked by a relationship of affectivity, regulated in article 148 CP . In addition, in the same chapter we find article 153, referring to ill -treatment, in which express reference is made to "the offended" as a woman linked to the author by relationship of affectivity, as a victim of the type, and uses the term "he"To refer to the author. 

The debate opens with the interpretation of "especially vulnerable person who lives with the author". A part of the doctrine understands that the mistreated man in his emotional relationship by a woman could be considered vulnerable and, therefore, be a taxpayer of crimes against gender violence, since no difference is made depending on sex. 

However, in order to consider man as a ‘especially vulnerable’ victim, it will not only be required to coexist with his aggressor, but also that he will find, at least, in a situation of inferiority or weakness with respect to it because of his age, personal conditions, physical or psychological illness. 

This excludes that any man can be a passive subject of these crimes, since such a possibility is restricted to certain cases such as, for example, that man has some type of severe disability that the defense makes it impossible. In order to consider man as a ‘especially vulnerable’ victim, it will not only be required to coexist with his aggressor, but also that at least, in a situation of inferiority or with respect to the same reason of his age, personal conditions, personal conditions, personal conditions,physical or psychological illness. 

On the other hand, we can also find aggravated types of the crimes of threats and coercion based on gender reasons. These articles the articles 171.4, 172.2 and 172.2 ter. In these cases, the penalty is aggravated and even leads to punish mild behaviors as a crime, as long as the victim is a woman related affectively to the aggressor. In these cases, the legislator also analyzes a concrete penalty in cases where these behaviors are committed on any of the previous persons in section 2 of article 173 of this Code, which we will refer to in the subsequent paragraph.

In the case of torture and other crimes against moral integrity, article 173.2, which is referred to in different titles of the Criminal Code to generally aggravate the author’s criminal sanction. This article regulates the so-called crime of common ill-treatment in which not only women who maintain or have maintained a relationship of affectivity with the aggressor-man may be victims, but will also protect other vulnerable people who integrate the core ofFamily coexistence. For these cases, the author will also be a man, because the writing speaks of "he" to refer to the active subject.

You can also see this gender regulation in the crimes of discovery and revelation of secrets, collected in article 197.7 CP. In addition, we can also find other criminal types that protect women according to the writing of article 173.2 CP, such as article 156 TER and article 468 CP. As can be seen taking into account the literal writing of the Criminal Code, a special distinction is made in crimes against physical, psychic and moral integrity when the victim is a woman and the aggressor man, with whom it maintains or has maintained a relationship ofaffectivity. 

However, attention that nothing is said in the special part of this aggravation in crimes against life or sexual freedom, in which for gender reasons it can be imposed, as we will see below, the mixed circumstance of kinship asaggravating or generic aggravating discrimination (or, where appropriate, resorting to the rules of the competitions).

The gender in the general part of the Criminal Code.

To start with this analysis, we will take article 22.4 CP, incorporated with the entry into force of Organic Law 1/2015 of the Reform of the Criminal Code, which regulates as an aggravating circumstance to commit a crime for gender reasons, among others. In the specific case of gender, this modifying circumstance of criminal responsibility would allow the legislator to apply as longof affectivity.

Second, we cannot fail to mention article 23 CP, regulator of the mixed kinship circumstance. As we have indicated in the previous section, the Criminal Code provided, for certain cases, a specific aggravation of kinship in the special part in the case of the existence of such an affectivity relationship between man-agreor and woman-victim. 

conclusion

Therefore, this circumstance, which is applied as an aggravating person in cases of personal crimes, may not aggravate the author’s responsibility in the assumptions explained in the previous section, understanding that this circumstance is implicit in the writing of the writing of the wording of theconcrete criminal type, so otherwise, the violation of the principle of the ne bis in idem would be incurred.

 However, this aggravating circumstance (in this case), can be applied in crimes against sexual life and integrity, which do not include it in the drafting of the specific criminal type. In addition here, unlike the cases analyzed in the special part, there is no reference to a man or woman, so I consider the possibility of its application also in cases where the woman is the aggressor and the man the man thevictim or in cases of homosexual couples.

Other articles in which express reference is also made to gender assumptions are, on the one hand article 57, regarding the mandatory application of the penalty of departure in certain crimes, when the victim is one of those collected in section 2of article 173;Article 83.2, in which it is obliged to impose in any case the prohibitions and duties 1, 4th and 6th of article 82 when the crimes were committed on women;And article 84.3, which refers to the prohibition of imposing the penalty of fine in case there is an economic relationship derived from the conjugal or coexistence or filiation or existence of common offspring between victim and aggressor.