UNE ANALYSE DE 8 ANS DE LOI DE « VIOLENCE DE GENRE » . 2004 – 2012
Antonia M. Carrasco, Présidente de GenMad (l’Association de victimes de la loi de violence de genre Madrid) et Marisa Culebras, President Feminist Association for Equality (FEMII)
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”.
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. 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. In the web www.projusticia.com you can find a wide range of these examples.
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.
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.
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