The judicial bodies have applied the gender aggravating circumstance in a little more than six out of ten procedures in which they were requested. This is the conclusion of the Group of Experts of the Observatory against Domestic and Gender Violence of the General Council of the Judiciary (CGPJ) after the analysis of 36 sentences handed down between 2016 and May 2018. The study warns of the importance of applying this circumstance introduced in the Penal Code in the 2015 reform applicable to criminal acts committed against a woman because she is so regardless of whether the aggressor is her partner or ex-partner.
The data, according to the CGPJ, show "an upward trend in their request by the parties involved in the process." Of the judgments analyzed, the majority issued by the Provincial Courts, in 24 the gender aggravation was applied and it was not assessed in 12, which allows the Expert Group to conclude that "there is a disparity of criteria in its assessment". In 90% of the cases, the request has been made by the private prosecutor, while in 73% of cases the public accusation has been made.
The inclusion in 2015 of the gender aggravation responds to the adaptation of Spain to Council of Europe Convention on the prevention and fight against violence against women and domestic violence, known as the Istanbul Convention, ratified by our country in 2014. However, the judges warn that this is a first step to which the obligation to extend the concept of gender violence beyond the couple or ex-partner must continue. which is the one currently recognized by the Gender Violence Law of 2004.
Last September, the Supreme Court applied the gender aggravating in the case of a man who tried to murder his partner. In a judgment that partially corrected another one of the Superior Court of Justice of Castilla y León, the Criminal Chamber understood that the attempt of domination on the victim had been proven.
In line with the spirit of this European instrument, the CGPJ emphasizes that the aggravating circumstance must be applied "to all those criminal acts in which the attack against the legal rights of women is committed on the basis of gender, regardless of the link between the aggressor and the victim, "especially in cases of murder or crimes against sexual freedom. However, the organism warns that only in one case of the 36 analyzed has it been agreed without there being a relationship of affectivity, current or past, between the aggressor and the victim.
Attending to this situation, the experts advise to include in an "express" way in the law that the gender aggravation must be applied to those criminal acts in which "the victim is a woman, precisely because he is female" and that the perpetrator acts in a spirit of domination or machismo, "be it, or not, partner or ex-partner".
The Group of Experts points out, finally, that the aggressions against women because of their gender is transversal because it affects women of all ages and nationalities. Thus, it proposes the promotion of campaigns that emphasize this circumstance and emphasize the need to train all legal operators and agents involved in the fight against gender violence on the subject.
Regarding the instruction and prosecution of the crimes in which the aggravating circumstance is claimed, the experts describe "the collaboration of third parties unrelated to the process" of "vital importance" because they are the relatives, friends and other persons of the victim's environment "can contribute direct and useful information "and their testimonies, fundamental for deciding on protection measures.
In this sense, the information that has served as a probative basis to determine whether criminal actions had a gender discrimination component in the analyzed cases has been the existence of previous aggressions or threats (50% of sentences), the existence of patterns of control and coercion or the verification that the effort of the woman to separate has been the trigger of the criminal act.