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Legal analysis of the framework law on integrated protection measures against gender violence in Spain from the feminist viewpoint

For Maria Duran Faber
26th March 2005

*Photo: Manifestation of Spanish women in front of the Congress of Deputies an Integral Law against gender violence. september 2002

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The term "gender violence" is used to define the violence men use to maintain women in subordination. This violence takes different forms, such as abuse in close relationships, gender-based moral harassment and sexual harassment in the workplace, as well and sexual aggression in the social context.

At first sight, it may seem that “gender violence" and "domestic violence" are equivalent terms, because in the domestic domain women are by far the main recipients of violence. However, there are essential differences, because legal protection for domestic violence victims arises from protection for the family, the term “gender violence” considers women as citizens on a par with their male counterparts and emphasises the democratic shortcoming implicit in the fact that the state does not guarantee women the full enjoyment of the fundamental right to life, freedom, equality and safety.

The "gender violence" concept has encountered resistance in its inclusion in statute law due to the abstract and apparently neutral concept of the subject of law. Laws have been passed addressing domestic violence but until now we didn’t have in Spain a national law3 clearly aimed at eradicating violence against women4.

At the international level, violence against women is approached in the so-called “soft laws” which comprises the Declarations of the United Nations Assembly and other institutions and recommendations in the European context (Assembly of the Council of Europe, EU Parliamentary Assembly).

Said declarations, resolutions and recommendations make explicit reference to gender violence. These “soft” laws cannot be invoked as applicable law but can be utilised to interpret national statute law, according to the European Community Court of Justice in the Grimaldi sentence dated December 13, 1989.

The international treaties arising out of the United Nations, the Council of Europe or the European Union do not name women as recipients of gender violence. This apparent omission has a dual explanation, ie. the period of time in which they were signed and the inclusion of gender violence within the sexual discrimination concept. The 1979 “Convention for The Elimination of All Forms of Discrimination against Women” (CEDAW) does not include explicit references to gender violence; however, it has interpreted that violence against women is a form of sexual discrimination and, as such, must be considered to be included in the Convention.

The Treaty establishing a Constitution for Europe, approved by the heads of government of the 25 EU member states, does not explicitly include the objective6 of fighting violence against women even though it was one of the claims of the European Women Lawyers Association (EWLA). The explanation for this omission is found in the final document, which considers that violence against women is an extreme expression of inequality which must be addressed in all European Union policies (article 116 of the Treaty7).

The only international treaty which explicitly includes gender violence is the “Inter-American Convention for Preventing, Punishing and Eradicating Violence against Women”, approved in 1994 by the Organisation of American States.8 The importance of this treaty lies in that, on the one hand, it is unique in so far as it refers to the right of women to live free of violence, and on the other it legitimates any citizen of a signatory state to report any noncompliance to the Commission, the decisions of which can be appealed before the American Human Rights Court.9 Section 5 of Decision A4-250/1997 of the European Parliament on "Zero Tolerance” calls on member states to introduce specific legislation aimed at protecting victims of violence based on their belonging to the female gender in their penal code of law and in family law, and to introduce specific regulations against gender-based harassment of women.

The associations of Spanish women have called for a comprehensive law against gender violence since 199310. A number of campaigns were carried out until 1998, when the Socialist Party took up the challenge and invited said associations to prepare the first draft law against gender violence, filed at Parliament by the Socialist Parliamentary Group on December 16, 2001. A vote was taken to accept the proposal, which was finally rejected due to the votes of the ruling Popular Party.

The European women lawyers, also has a influence in this Law, the work in the Daphne “Proteger”, the comparative practices and legislations about gender violence in home, has some recommendations who there are in it Law11.

The Organic Act 1/2004 dated December 28 on integrated protection measures against gender violence establishes in its first article:

1. The purpose of this Act is to combat the violence exercised against women by their present or former spouses or by men with whom they maintain or have maintained analogous affective relations, with or without cohabitation, as an expression of discrimination, the situation of inequality and the power relations prevailing between the sexes.

2. (...)

3. The gender violence to which this Act refers encompasses all acts of physical and psychological violence, including offences against sexual liberty, threats, coercion and the arbitrary deprivation of liberty. Said law has the purpose of fighting violence against women by their partners due to the high amount of cases and in the consequences it has on the lives and the health of women. Said law guarantees rights to all women who have suffered gender violence in Spain, regardless of their nationality and their legal situation in Spain.

Font: Red Feminista.