THE PUNITIVE DISTINCTION ON GROUNDS OF SEX IN THE PENAL CODE OF SPAIN AND THE ORGANIC LAW 1/2004 OF 28 DECEMBER ON INTEGRAL PROTECTION MEASURES AGAINST GENDER VIOLENCE

Jose Antonio Gonzalez-Costa

Abstract


The aim of this article is to examine the punitive differences after come into force of the law 1/2004 of 28 of december, (LVG) because this law protect only women and not men, studying the differences in the law enforcement, and what criminal consequences will have, in every single case, depending on the victim, if it’s a woman or if it’s a man.

In order to research the objective and fulfill tasks set the research project, the applied methods during the research progress are the following: analytical, inductive, logical, systemical. Also the method of the analysis of literature, the comparative legal method and theoretical method of research to investigate, analyse and summarize information of publications.

The methods chosen are very important in analysing the Spanish law, case law materials to opinions of legislator and law scientists.

Supported by the inductive and comparative method is used in order to make it able to analyse individual aspects of the law 1/2004 and the criminal laws its application and consequences in differents cases, from several theorethical conclusions.

The logical and analytical method was used in order to study content of the law, its protections to the victims and punishment and if with its application the society is better and secure for everyone, analyzing the effects in the citizens.

The overall object of this article “The punitive distinction on grounds of sex in the penal code and the organic law 1/2004 of 28 december on integral protection measures against gender violence” is a national human rights interests, however the direct object is national interests in the field of domestic violence and violence against the women, and the protection of the woman in the society and her freedom and development as a human being. Moreover the the application of this law creates social conflicts, make deeper the differences between man and woman and it doesn’t solve effectively the problem of the violence against the women.

The subject matter of this article is the Spanish Criminal law in connection with the violence against women and its effective application and using different methods to check if the principle of equality in the law and of sexes is applied in Spain in an egalitarian and fair way. The most common cases are the physical and psychic aggressions, threats and coercion, and this is what the law 1/2004 and the Spanish criminal code try to sorted out.

Also, this law is strong criticized by many sectors, and in this article it’s defended the position  that this law should be applied to both sexes, without distinction and so, to try to convert the society in a space of equality and justice.

The main conclusion shows that actually in Spain, the society is suffering a very unfair law, specially for men, and does not help really to women when they are assaulted.

It must to be changed this law, being applied to everyone without exceptions, that’s means, without making differences between  woman and man.


Keywords


gender violence; victim; integral protection measures against gender violence

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References


There were numerous discrepancies in SSTC, reflected in votes inparticular carried out by judges, acting against the jurisprudential TC lineand away from decisions on this subject, about the collision offundamental rights and the aforementioned LVG.

See in Exposition of Motives of the Law Organic 1/2004 of 28 de December.

The Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) is a Council of Europe convention against violence against women and domestic violence which was opened for signature on 11 May 2011, in Istanbul, Turkey.

See Article 10 EC 1, and Art. 14 CE.

See the discrepancy between the judges of the TC, on the constitutionality of the LVG, reflecting its position in particular votes in STCs as important as the 59/2008 or 45/2009.

See STC 222/1992 of December 11 or STC 155/1998 of 13 July.

See STC 103/1983 of 22 November, STC 128/1987 of 26 July or STC126 / 1997 of 3 July.

See art. 14 SC.

See note 12.

Judgment of the Swiss Federal Court of February 14, 1982.

See STC 222/1992, of 11 de December.

See STC 55/1996, of 28 de March and STC 136/1999, of 20 de July.

See STC 59/2008 y STC 45/ 2009.

See STC 59/2008 y STC 45/2009.

Vázquez Sotelo, J.L. Prologue to the work of Prof. Vallespín "The connection in the criminal process", Cims Editorial, Barcelona, 2007, p. 15. In the same direction of thought Sánchez, C. Prologue to the work of Professor Del Pozo Pérez "Domestic Violence and Misdemeanor Trial", Atelier, Barcelona, 2006, p. 17.




DOI: http://dx.doi.org/10.17770/acj.v3i84.3601

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