Opinion on gender equality and inequality
Article 14 of the Spanish Constitution establishes that all Spaniards are equal to the law, without making any gender distinction. However, as we have been able to observe through the analysis of the Criminal Code, this equality does not seem to be effective in certain cases.
But what should we understand by gender? According to WHO, the gender is understood by the social concepts attributed to the functions, behaviors and/or activities that society expects to carry out a man or a woman, being different the expectations associated with such roles in each of the cases.
Therefore, when talking about gender, we should refer to both the man and the woman. However, according to the potential victims of this type of violence, it is striking that, according to the literal writing of the criminal law, in this type of violence it is required that, in order to be considered a victim, this must be a heterosexual woman(and/or minor or person especially vulnerable) and the victimizer a man. In addition, both the CP and the LOMPIVG in its article 1, make express reference that for women to be protected in this area, it will have to maintain or have maintained an affectivity relationship with their male aggressor. What you want to show here is that, the scope of protection of this law not only excludes man, but also leaves out women who maintain or have maintained a non -heterosexual relationship (Echeburúa, 2019). This regulation presumes that women is an especially vulnerable being, which is a situation of positive discrimination on this that, in addition, will make the woman in case of being an aggressor of her member-man, has a privileged penalty in front of the caseotherwise (Rueda and Boldova, 2004).
It is a serious mistake. As a consequence, there can be a break in the principle of presumption of innocence (STS 119/2019, of March 6), when in reality, both aggressors (assumptions of cross -violence) have been able to be both (assumptions of cross -violence). In addition, when always considering victim in these cases to women, we are considering that this is a vulnerable being, as we have already pointed out, equating it to a minor and thus reducing their capacity for autonomy (Echeburúa, 2019).
It can therefore be considered that the current regulation does not respect the principle of equality and that is, therefore, discriminatory with men, attending not only to the injury of the presumption of innocence, but also at the beginning of guilt andThe creation of gender aggravants (Laurenzo, 2012). This political-deminal line is closer to a criminal authority of author, typical of the enemy’s criminal law, where it is punished not because of the fact committed, but based on the author who commits him. The same violent fact is not punished in the same way if the author of it is a man who is a woman (Laurenzo, 2012). On this subject, positions have been maintained against them that there are no asymmetry between the penalty of men and women in cases of gender violence (Gisbert, 2017)
To disassemble the opinion that the writing of the criminal law considers egalitarian in cases of gender violence for men and women, we must attend to the literal writing of the same. In this way, in the face of the consideration of an equal or similar penalty in the crimes of labor ill -treatment (art. 153.2 CP) (Gisbert, 2017), if the woman is the aggressor, she will continue to maintain a privileged penalty, because the lower limit of the penalty is lower in these cases, making them impose that lower limit, her penalty of her penalty ofPrison must be replaced in any case for a duration of three months in prison. Likewise, in crimes against moral integrity (article 173 CP), if the aggressor is male, his penalty will be prison, in the case of the woman being the aggressor in which the penalty will be permanent location, which does not implythat the same facts are qualified in the same way as part of the doctrine (Gisbert, 2017) points out.
This criminal asymmetry can be analyzed through the crime of injuries. In the case of the basic crime of injury (article 147 CP), a common crime since the active subject can be anyone, the penalty is the prison of 3 months to 3 years or a fine of 6 to 12 months. However, when there is a relationship of affectivity and those injuries are caused by the couple-man on the couple-woman, the prison sentence increases from 2 to 5 years, becoming unique and not alternative penalty as in the previous case. Likewise, if we attend to other aggravated injuries, in the event that the woman wears weapons or dangerous instruments or committed the fact through alevosía, even adding in this case the mixed circumstance of kinship as aggravating (which cannot be applied incases of gender violence over women, as explained above), the penalty may be applied in its upper half. In this case, the upper limit imposed in the event that the woman was the victim would not be exceeded. This is the same argument that other authors have used to deny criminal asymmetry in the rest of crimes against gender violence.
If we apply the mixed kinship circumstance along with discrimination, the maximum that we can aggravate the penalty will be until its upper half. In the case of the crime of injury, it would be 1 year and 3 months (approximately) to 3 years in prison. The applicable criminal frame would remain less than in the previous case of 2 to 5 years in prison).
Conclusions
Faced with criminal symmetry in gender violence that defends part of the doctrine, as we have explained above, analyzing the Criminal Code, I understand that the current regulation is discriminatory for both men and women.
I understand that there is discrimination against man since his penalties in case of being aggressor are greater than those that would be imposed in case he was a victim.
In addition, current law discriminates women who suffer from gender violence outside their emotional relationships, such as committed in other areas such as labor.
Even within emotional relationships, the law continues to be discriminatory for both men and women, since this regulation is only foreseen for heterosexual relationships, but nothing is said of homosexuals, which would make us go to the application ofaggravating or for the victim to have to be considered especially vulnerable, with the difficulties of proof that this entails.
I consider that a reform of the law would be proposed that protect the genre in its two aspects, female and masculine. In addition, the woman has not only to be protected in their relationships, but it would also be necessary for this protection. That is, what I propose is to protect gender as long as it is affected, regardless of the context and the condition is done on the male or female gender.
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