In full media and social debate in relation to the difference between gender violence and domestic and / or intrafamily violence, welcome be the sentence in the Plenary Chamber of the Criminal Court Supreme Court –known today January 8– where the High Court finds that the mere fact of an assault of a man against a woman who is his partner or ex-partner is already an act of gender violence.
The pronouncement of the Supreme Court is important because it sets doctrine and unifies criteria around several aspects. First of all, in relation to the conceptual delimitation of gender violence, differentiating it from any other type of interpersonal violence in the context of the couple or ex-partner, which requires an approach and a specific juridical treatment guaranteed constitutionally (STC 59/2008, of May 14, among others). Secondly, due to the disparity of criteria – in court – that had been observed around the demand by some Provincial Courts to accredit the macho intentionality before this type of crimes for the application of the Comprehensive Law against Violence of genre. Machoist intentionality that resulted in a sort of 'non-existent' and invented subjective element required in criminal offenses in terms of gender violence, being used as a defense strategy by aggressors in cases of 'cross-complaints' or 'reciprocal aggressions' as the one that resolves the Supreme Court in this case.
At this point it is important to specify that the legal discussion on the subject is not new, being one of the conflictive aspects always analyzed from the point of view of the legal approach to this type of violence. In this sense, the recommendations of the Guides prepared by the General Council of the Judiciary (2013-2016) on criteria for judicial action on gender-based violence, where it states that criminal offenses in the area of gender-based violence require no more than the accreditation of the relationship between the partner or ex-partner. man and woman and the realization of criminal behavior "Dispensing with any subjective element of the unjust, beyond the generic intent to impair physical or mental integrity, threaten, coerce, etc." And this is the meaning of the Supreme Court in a sentence that will surely mark a before and after in the normative interpretation of the criminal types in the face of this type of violence in which the macho intentionality no longer has a place.
María Concepción Torres Díaz is a lawyer and professor of Constitutional Law at the University of Alicante
Analysis of Public Agenda for EL PAÍS