ANALYSIS
OF THE FIRST 8-YEARS OF THE
SPANISH
LAW OF “GENDER VIOLENCE”
2004 - 2012
Antonia M. Carrasco,
President GenMad (Asociación de Víctimas de la Ley de Violencia de Género
Madrid and Marisa Culebras, President Feminist Association for Equality (FEMII)
January 2013
This past December marked
the eighth anniversary of the implementation of Spain’s rather infamous Law
1/2004, a law that aimed to “guarantee integrated protection measures against Gender Violence”.
The General Council of
Judicial Power (CGPJ) has now published the official statistics for this
period, allowing an in-depth analysis of the legal effects of the law in
regards to: a) women, as beneficiaries of the law, b) men, as subjects of the
law, and c) police forces: responsible for implementing the law and its
policies.
Due to the
widespread controversy created in Spanish society by the adoption of the law,
during these eight years many groups have been formed in its support, yet
equally, many others arose to questioned it’s very legality, many of which have
been formed by citizens directly affected by the law itself. It is undeniable that this topic has been one
of the most hotly debated issues due to the intense interest it has generated
amongst members of various professional institutions, equally as much as in the
associations of affected citizens and general detractors of the law of “Gender Violence”.
Questionable Constitutionality
In our opinion, the law of “Gender
Violence”, that is to say a law defined as violence against women
originating exclusively from male partners, is in itself, unconstitutional and
should never have been approved.
The pre-approval reports issued by the General
Council of the Judiciary, the State Council and the Attorney General, were
extremely negative and warned of serious legal and constitutional
consequences. The question we ask
ourselves is why was it approved despite the negative reports issued by
important advisory bodies? This law is fundamentally sexist (protecting only female partners),
legally asymmetric and unidirectional. The law interprets lesser acts of violence
committed by a woman against a man as a misdemeanour, whereas if the
perpetrator is a man, it is interpreted as a crime. It also disregards the right that a Spanish
citizen may not suffer discrimination on the grounds of sex. But what is most alarming is that the
constitutional principle of presumption of innocence becomes, in the case of a
man, a presumption of guilt, reversing the burden of proof, forcing the accused
to prove his innocence beyond doubt, directly violating several international
laws ratified by Spain, which guarantee the presumption of innocence, as for
example, article 14.2 of the International Covenant on Civil and
Political Rights and Article 6.2 of the European Convention on
Human Rights.
After the board of Spain´s Constitutional Court had
been “reorganised” by the past government, it declared the law of “Gender Violence” constitutional by just
one vote, basing the judgment on the fact that the perpetrators of the majority
of domestic violence are overwhelmingly male, and as such allowing the
imposition of heavier penalties against men. Following this reasoning, as a renowned jurist mentioned at the time,
given that the majority of the prison population is foreign, the legislature
could just as well amend the Criminal Code to set a higher penalty on crimes
committed by foreigners, as opposed to those committed by nationals!
With the law in vigour, numerous Spanish feminist associations began to make recommendations to
women seeking assistance that instead of going to a family therapist – that
existed for the very purpose – that they applied to a court of “gender violence” to resolve their
marital or family issues. There are sites such as www.infomaltrato.com, where they recommend making a complaint to the police for numerous
types of issues. http://www.infomaltrato.com/index.php?pagina=indicios
Obviously, there are many instances that
relate to serious abuse, thus reporting the matter and requesting protection
measures are reasonable, but a substantial number of cases have been based on
trivial complaints, such as not letting the female partner watch a certain TV
program, or not letting them finish a crossword, or even criticizing the
partners clothes.
http://www.infomaltrato.com/index.php?pagina=indicios
If we visit this
site and read all the cases in which the recommendation is to make a police
report, almost all men should be reported for abuse, as it is difficult if not
impossible for a couple to never suffer one of these type of minor squabbles at
some moment during their relationship.
Apart from these issues, economic motivations have been created in
which a woman becomes automatically entitled with just simple certificate of
“bad treatment” issued by a women's association (and without even a court
judgment), to receive aid of several thousand euros or more having reported
their male partner. The complaint only
has to be within any of the many cases defined in the following link: http://www.infomaltrato.com/index.php?pagina=economicos
Once a woman partner has filed a
complaint, the steps that the police and Women’s Court can take are often
emotionally scarring for many of the men involved. Without trial, and often without evidence or
any sign of physical violence, men of all positions are often arrested by
police, even at their place of work, and taken into custody. Sometimes this is
done on a Friday, with the result that the man may have to spend the entire
weekend in a cell if he does not “fully cooperate”. Judges at the Women’s Courts usually give an
immediate “distance order”, which can result in the man being unable to attend
his work if his partner is also working at the same location.
Obviously there are no
statistics about collateral victims, but we cannot forget that behind every
unfairly accused man, there are family, friends and many others that can be
affected watching the suffering caused by an ordeal of this nature that may
last years until they are finally acquitted.
In the accompanying article from 2009, http://www.elcorreogallego.es/gente-y-comunicacion/ecg/javier-perez-olleros-menor-es-gran-olvidado-ley-violencia-genero/idEdicion-2009-03-08/idNoticia-403921/
a judge of a Madrid Court for “Gender Violence”
stated that in 2007 he handled some 5000 cases, and that with such a saturation
of cases for all types of petty complaints, many real cases of domestic
violence were left unprotected having devoted resources to those that in
reality needed little more than family counselling, which is the case in the
vast majority of allegations, as shown below.
This same judge, exhausted from all the cases, freed a man in
error, who had been imprisoned temporarily for gender violence, who later
broke a restraining order for assault, breaking into the home of his former
partner with a 12-gauge shotgun and, after physically and sexually assaulting
her, held a 6 hour siege at her home with shotgun in hand, tying up a police
negotiator team in the process.
In domestic violence, as it is called in
Europe, or gender violence in Spain (which excludes violence against male,
homosexual partners, or children), Spain is the only country in the European
Union and developed countries, where the law differentiates between men and
women in the same crime or misdemeanour, and the only country in which Courts
exist dedicate to the exclusive prosecution of men; with 106 “Gender Violence”
Courts in total.
Actual statistics: In the seven
years since the law was implemented, the Women’s Courts have processed 963,471
criminal cases against men, of which just 10% (101,900) related to cases where
signs of violence could be seen. A total
of 520,839 sentences where handed down against men where no physical signs of
violence could be found, and where in many cases, the only evidence was that of
the ex partner.
Of nearly one million cases against
men, just 33,473 related to serious violence.
IS EVERY CASE MACHO-BASED VIOLENCE?
In most European countries
the cause of domestic aggression is investigated and fully reported. In Spain, this
has not been the case: the Spanish
judiciary have assumed that all aggression against women has a sexist basis. For example, when it comes to aggression
caused by jealousy following infidelity, if the aggressor is male, it is
automatically considered “macho” violence, or “violencia de género”,
exclusively from male perpetrators aimed at women for being women. However,
when the aggressor is a jealous woman, or when a woman is under the influence
of alcohol, drugs, or diseases such as schizophrenia, the cause is not considered
to be feminist violence against men. Machismo, or violence against women, is a
very distinct concept in Spain, and is used to push the statistics that justify
the vast economic and media barrage aimed at so-called gender violence. Regardless of the
propaganda in Spain, the statistics on “gender violence” murders in Spain are
the lowest in Europe.
The aggressive national campaigns against gender violence since the law
was implemented, where, as mentioned earlier, women were strongly encouraged to
report any and all types of relationship problems to the Police, including, for
example, where a man had simply raised his voice against his partner, have
created a collective paranoia that has led many women to report their partner,
with many subsequent arrests and prosecutions, with many men being condemned
and forced to take rehabilitation courses. However, far from rehabilitating
these hundreds of thousands of men, it seems that in some cases more violence
has occurred, by men embittered by unjust and often ruthless treatment in
Women’s Courts that only serve the interests of women. Given the actual statistics, it seems that the gender violence
campaigns of “Zero Tolerance” would have us believe that a molehill is a
mountain and a mountain a molehill.
How has social propaganda in Spain achieved to paint all domestic
violence as macho? In our view, the
strategy used was, in short, very similar to the 11 principles of propaganda
created by Goebbels and used by the Nazis to raise awareness among German
citizens of the “Jewish problem”.
In his book Mein Kampf, Hitler explains how
the media are essential in the indoctrination of the public. What is truly sad is that history shows us
that these techniques work perfectly time and again.
“Whatever definition we may give to
the term ‘public opinion’, only a very small part of it originates from
personal experience or individual insight. The greater portion of it results
from the manner in which public matters have been presented to the people
through an overwhelmingly impressive and persistent system of ‘information’.
In the religious sphere the
profession of a denominational belief is largely the result of education, while
the religious yearning itself slumbers in the soul; so too the political
opinions of the masses are the final result of influences systematically
operating on human sentiment and intelligence in virtue of a method which is
applied sometimes with almost-incredible thoroughness and perseverance.
By far the most effective branch of
political education, which in this connection is best expressed by the word
‘propaganda’, is carried on by the Press. The Press is the chief means employed
in the process of political ‘enlightenment’. It represents a kind of school for
adults. This educational activity, however, is not in the hands of the State
but in the clutches of powers that are partly of a very inferior character.
While still a young man in Vienna I had excellent opportunities for coming to
know the men who owned this machine for mass instruction, as well as those who
supplied it with the ideas it distributed. At first I was quite surprised when
I realized how little time was necessary for this dangerous Great Power within
the State to produce a certain belief among the public; and in doing so the
genuine will and convictions of the public were often completely misconstrued.
It took the Press only a few days to transform some ridiculously trivial matter
into an issue of national importance, while vital problems were completely
ignored or filched and hidden away from public attention.“
STATISTICS
FOR DECEASED GENDER VIOLENCE
Figure shown below are from
the French authorities, and relate to deaths within the scope of couples,
produced by a variety of causes rather than the "sole and
indisputable" one that is promoted in Spain, namely macho violence. As we can see below, the motives and
circumstances of domestic violence resulting in death, are: discussion,
alcohol, separation, jealousy, depression, drugs, medication, mental illness.
Source: French National Assembly.
In a 2006 study
by the Centro Reina Sofia, that excluded countries whose population were very
small, such as Monaco and Andorra, Spain holds sixth place from bottom, with a
rate of 2 people per million murdered (81) through domestic violence, this
being just below Bulgaria, Ireland, the Netherlands, Slovakia and Scotland. All other European countries are above this rate. 12.37 Cyprus, Austria 9.40, Finland 9.35, CR 8.15, 7.14 Croatia,
Estonia 6.38, Hungary 5.95, France 5.22, 5.09 Luxembourg, England 4, 20, Norway
3.67, Italy 3.66, Slovenia 3.99, 2.81 SPAIN.
Based on these figures, the
European average is 3.94 deaths per million people. It should be
noted that the implementation of law 1/2004 of Gender Violence in Spain did not
result in this reduced level of female deaths, in contrary, death rates
increased following the law.
CUSTODY AND GENDER VIOLENCE
At this time, the government is expected to approve the joint custody
law nationally. Will this affect the
number of cases of domestic violence?
The Civil Code, Article 92.7, states that joint custody will not be
allowed if either parent is the subject of criminal proceedings or when a Judge
finds evidence of domestic violence.
This opens the door to an increase in the number of reports by women of
“bad treatment”, to ensure that child custody will be awarded to the mother
exclusively. This is nothing new,
in Aragon the joint custody law was passed in late 2010, following which in
2011 complaints increased by 25.40%. What will happen nationwide on adoption of the Joint Custody law?
ANALYSIS OF THE RECENTLY FIGURES PUBLISHED
On 21 November 2012, Ms. Inmaculada Montalbán,
Chairperson of the Observatory against Gender Violence of the CGPJ, presented
the figures following nearly eight years of implementation of the gender
violence law.
In the report, Ms. Montalbán states that the figures raise great cause for alarm, the
difference however is that our concern has an entirely different interpretation
of those figures. In her remarks highlighting the work of the
Courts specialising in gender violence and its aim to end impunity of male
culprits by achieving an 80% conviction rate, if we analyze the figures
carefully, we see little more than a heavy bias in the manner in which the information
is presented. We explain:
In her report she provides the number of
reported crimes as 1,034,613 (alleged crimes 963,471 and alleged misdemeanours
71,142), she repeatedly refers to “crimes” rather than “alleged crimes”,
assuming that these allegations have all been substantiated. She then provides the number of convictions at 207,997, mixing crimes
with misdemeanours, which constitutes just 20.1% of the total cases reported
leading to conviction.
So what happened to the remaining 826,616 cases?
It seems that 706,568 of the cases were dismissed,
and 120,048 end in acquittal. If we add this to
the number of complaints that were retracted, the result is that from all the
reported cases, 79,90% of the men reported to the police suffered:
arrest (most of them), loss of home, loss of access to children and home,
financial ruin, loss of property/pension, as well as having to pay the mortgage
on their own home in which they could no longer live, marginalization and
social stigma to be called and considered abusers even before judgment,
resulting in psychological strain that can result in depression and suicide in
some cases. There is no public official way to
know how many men have finished with their lives because of this situation.
Then these men, after suffering all this terrible
chain of events following the report by their ex partner, are found not guilty
or innocent, but the damage has already been done, and no compensation is
offered, as official, “false complaints” do not exist.
Note that in the Courts of Violence against
Women, 100% of the convictions are under compliance, that is to say that the
accused is given a choice, for example, 30 days of social work and a course of
rehabilitation, or a jail term of between six months and two years, and the
accused men have accepted the lesser sentence rather than to continue to defend
their innocence. Given this
situation, not knowing that their compliance carries a criminal record and a
hypothetical new complaint involving a jail sentence, the accused detainee
accepted social work with the aim of ending the case.
WHAT TYPE OF CRIME IS REPORTED?
Given the data issued by Ms. Montalbán, it is
noteworthy that nearly 80% are for offences related to Article 153 of the
criminal code relating to causing mental suffering, or mistreatment without
causing physical injury. This means that a simple argument involving
harsh language, even where the man says something like "you'll find
out!", etc., is reason enough to report a gender crime, but only if
the complainant is a woman. Only 5% of complaints
are made under Article 148 of the Criminal Code, which provide for severe
cases of abuse. What is occurring in Spain is the criminalizing of men for trifles and
specific discussions in the home environment.
In our
association we come across cases where men have been convicted for flatulence
during a discussion, or of causing the partner abuse via "telepathic"
means, or simple by the man losing patience and reverting to the use of the
"f" word. Although it seems utterly ridiculous, we assure you that in the case of
gender violence, truth is stranger than fiction. www.projusticia.com In the web www.projusticia.com you can find a wide range of these examples.
CONCLUSIONS
An analysis of the official Spanish government figures raises two issues:
firstly, that in 826,616 cases between 2005 and 2012, the accused, all men,
were found to be innocent. And, secondly, that the vast majority of the
complaints were based on Article 153 of the Criminal Code, namely that the
woman reporting her ex partner had not suffered any physical harm. For these and other reasons, our opinion is that most of the arrests
made, almost a million, during these 7 years, could be considered illegal: What
is the explanation?
The explanation is found within the constitutional mandates that the
police must follow, such as the Protocol for June 2004 and the SES
Instruction no. 05/2008. We explain:
Article 104 of our Constitution requires the Police to act as guarantor of the rights and freedoms of
citizens and, in particular, to protect victims of crime, and article 24.2 that
guarantees the presumption of innocence. Also, as previously pointed out,
international law also guarantees the presumption of innocence, as article 14.2
of the International Covenant on Civil and Political Rights and
Article 6.2 of the European Convention on Human Rights.
A large number of risk assessments conducted after allegations of gender
violence resulted in a “Undeterminable risk” opinion. In Instruction 5/2008 of the SES,
it says that "in this case the Police will act with the same measures,
operational and care, as for any other type of complainant ", so
acting on a complaint without basis or foundation would not be justified and
would contravene Instruction 12/2007 of the SES, the technical
regulation No. 1/2008 issued by the DAO on Procedures for the Civil
Guard units on Gender Violence, which specifies, that to act, there must
be a serious risk to the victim – of course complaints must be
substantiated by the Protocol for security and Police forces, including
coordination with the courts to protect victims of gender violence. Furthermore, the law and the above instructions do require an
investigation of the victim, in order to provide accurate and sufficient
evidence of the alleged abuse, since the mere word of the complainant, without
supporting evidence, is insufficient. Acting with the excuse of protecting the complainant, without signs of
abuse or an accompanying risk assessment, is illegal, unfair and unjustified
and could lead to accusations of illegal detention under Article 167 of the
Penal Code.
Obviously, to this must be added the
provisions of the Judicial Police Manual
.
We recall that all of this legislation is
available on the Police intranet, so that in case of a complaint to the Police,
no one can claim ignorance or lack of information.
POSSIBLE CAUSES OF ERRONEOUS INTERPRETATION AND
APPLICATION OF THE LAW BY SOME MEMBERS OF SECURITY FORCES
We believe that some agents acted illegally
for several reasons: in our view, misinformation and fear to take
responsibility if the accused later assaulted the alleged victim, and the
impartiality adopted by external influencing groups supported by the government
of the time, that applied pressure on the security forces.
We believe that the Secretary of State for Security should issue a
Technical Instruction to clarify to agents when it is appropriate and when not
to arrest and the legal foundations of both situations. In addition, officers and NCOs should be
trained more rigorously, to ensure that agents know the correct procedures.
It is striking that in an official document of the Ministry of
Interior, an Action Protocol for the Coordination of Security Forces,
advocates that in reviewing cases relating to the Gender Violence Law 1/2004,
Integral Protection Measures against Violence Gender, they did not find
a single reference to the word "alleged", thereby assuming the presumption
of guilt in all the men that had been reported, to the point of calling
them "criminals", without any judgment of conviction having occurred. Remembering the
statistics given earlier, the constant references that all the men reported
were considered to be guilty first, yet only 10% of cases resulted in criminal
convictions.
COMPREHENSIVE
MONITORING SYSTEM IN CASES OF DOMESTIC VIOLENCE
In the
Bibliography section of the report there are so-called professionals listed
that, in our opinion, should not have been included or even involved in
national domestic violence programs. Two of these are recognized Radical
feminists, Beauvoir, and Firestone, in whose books, far from promoting peace
and equality between men and women, they support a form of social
engineering as defence of female superiority and push hatred between men and
women, an issue that could compromise the impartiality of the Police agents
thought the promotion of these radicals and their publications. We also find listed the author Jorge Corsi,
who has supported Spanish radical feminism to implement gender ideology among
society, and who has been convicted in his home country, Argentina, in a final
judgment for several years jail for paedophilia, so it seems inappropriate that
this "author" remains as recommended reading for Police agents.
The criminal record as a pederast, and methodology to capture victims
of Jorge Corsi is available on Google.
Finally,
there is a strong political root to Spain´s Gender Violence law, one
based on the pre-election campaign of José Luis Rodriguez Zapatero, who came to
power earlier in the same year that law came into force.
There
are many reports from the Spanish Press of Mr Zapatero visiting many women´s
groups and giving favourable support to their aim of having their “own Court
for Women”, and given that in Spain there are more women than men, feminist
groups held a special appeal for Zapatero in his aim to raise votes.
Literature recommended:
·
The Dictatorship of
Género (Violence against Women). (ex-Judge, Francisco Serrano
2012)
·
I
A Social Engineers To Destroy Love (Rafael Palacios 2012)
·
Femicide or Self-Construction of Women
(María Stephen Prado and Félix Rodrigo Mora 2012)
·
400 International Reports Prejudice Against a www.escorrecto.org (J to
L Alvarez Deca)
·
All legal/police
protocols and instructions referred to in this article.
·
Legislation alluded to in UN and European
policy.
Reference sources:
EP article with statements from Immaculate Montalbán, "Balance
of seven years after the creation of the Courts of Violence
General Council of the Judiciary, Author: Observatory against Domestic
and Gender Violence (Spain), "Balance of seven years after the creation
of the Courts of Violence against Women
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