The Supreme Court has adopted a plenary agreement in which it determines that the reciprocal aggressions between a man and a woman who are a couple or ex-partner will be gender violence for him and family or domestic for her. At the same time, it indicates that the acts of violence that the man exerts on the woman during an affective relationship as a couple constitute acts of power and superiority against her regardless of the motivation or intentionality.
The agreement is due to a case processed by the Provincial Court of Zaragoza, which had confirmed the acquittal of a couple in which the man and the woman had attacked each other. The criminal court of that town also agreed the same, the Supreme Court said in a statement. Now, these magistrates revoke the acquittal of both that already agreed the Hearing and condemns the man to the punishment of 6 months of prison with order of distance and his accessory and to the woman to a pain of 3 months with equal ancillary and distancing.
The Public Prosecutor's Office accused them of the crimes of mistreatment, planned and punished in article 153.1 and in article 153.2 of the Criminal Code. In spite of this, he acquitted them for understanding that since the intention of domination or machismo of the man to the woman in his aggression was not proven, the facts were not constitutive of an act of gender violence in the attack of him to her, nor of the the woman towards the man. The fact was thus framed in Article 147.2 of the Criminal Code of mistreatment without injury that requires prior denunciation, so that in the absence of this could not condemn any of them, continues the High Court.
The proven facts relate that both were engaged in a discussion by not agreeing at the time they had to go home. During the confrontation they attacked each other. The defendant punched him in the face and he smacked her with an open hand in the face. Subsequently, the woman kicked him, without showing the production of injuries. "Neither one denounces the other," specifies the court's note.
The Provincial Court of Zaragoza considered that the reciprocal aggression between men and women is only a minor offense, but the Supreme Court points out that there is no basis or legal argument for degrading to a mild crime a mutual aggression between men and women who are partners or ex-partners. This is because it is not necessary to accredit a specific macho intention, because when the man assaults the woman it is already an act of gender violence with connotations of power and machismo.
The Supreme Court considers that mere aggression as a couple, hit or mistreat, without causing injury, will be a crime of gender violence and family violence, respectively, without major evidentiary attachments. He adds that it could be assessed in each case if there was legitimate defense in his aggressive response, but an acquittal can not be pronounced if the mutual aggression is verified.
The ruling includes a private vote signed by 4 of the 14 judges of the Plenary, which rejects the defendant being convicted of gender-based violence, and considers that both men and women must have been convicted as perpetrators of an offense under Article 153.2, and before the the seriousness of the facts, the lower penalty will be applied to a degree allowed by article 153.4.
The private vote, written by magistrate Miguel Colmenero, and to which his colleagues Alberto Jorge Barreiro, Juan Ramón Berdugo and Carmen Lamela have adhered, indicates that the proven facts do not contain any element that allows to understand that the aggression of the man to the woman it occurred within the framework of a relation of domination, humiliation or subordination of the latter with respect to that one.
"On the contrary, from the factual account it is not difficult to deduce that the mutual aggressions took place on a level of equality, in which two human beings, regardless of the personal and social roles that each one can attribute to the other, face up to arrive at physical aggression, based on a discrepancy on an inconsequential aspect of his life, a discrepancy that could have occurred and dealt with between any other two persons, without implying any initial superiority over the other. In any case, that context is not declared proven in the contested judgment ", states the vote.
In these conditions, the discrepant judges point out that the application of Article 153.1 to the accused male "is automatic and mechanical, and implies a presumption against the concurrence of the objective element that, according to the doctrine of the Constitutional Court, justifies that the sanction be different and more serious than the one that would correspond to the other member of the couple who executes acts of identical criminal relevance. "In his opinion," to start from the basis that the element that justifies the unequal treatment is contrary to the presumption of innocence "And, in addition, the principle of culpability is violated, because inequality of treatment has not been justified or proven.
The magistrates of the private vote emphasize that the matter dealt with is a questionable issue in which the Supreme Court and other criminal courts have maintained two different jurisprudential tendencies (that of the majority and the vote). But they understand that with the decision adopted in the ruling of the plenary session "an opportunity to interpret and apply the protection of women against gender violence, whose convenience does not seem to be discussed, within its authentic limits, avoiding extending the treatment, has been lost". unequal to male and female, contained in article 153 of the Penal Code, in an excessive and mechanical or automatic way to all cases in which, in the context of current or past relationships, the male misuses the work to the woman".