Recording of telephone conversations as evidence in criminal proceedings
May 30, 2024
In the controversial judgment of the Supreme Court 677/2018 of December 20, the doctrine regarding reciprocal male-female aggressions was established, and it is established that, if both are or have been a couple, any aggression by a man against a woman constitutes gender violence and this by understanding that the acts of violence exercised by the man against the woman on the occasion of an affective couple relationship constitute acts of power and superiority over her regardless of what the motivation or intentionality is.
In this case, the Chamber of the Provincial Court of Zaragoza had confirmed the sentence handed down by a criminal court which considered that a reciprocal assault between a man and a woman in which there were no serious injuries was only a minor injury offense (147.2 of the Penal Code - prosecutable only by means of a complaint by the offended party, and therefore acquitted both of them) on the understanding that in this specific case there was no situation of domination that would allow the man's aggression against the woman to be considered gender violence, but the Supreme Court overturned the acquittal of both of them by the Court and convicted the man as the author of a crime under Article 153.1 of the Penal Code (minor injuries to the person who is or has been the wife, woman or who has been linked to the perpetrator by an analogous relationship of affectivity - gender violence) to a sentence of 6 months imprisonment with a restraining order and its accessories and the woman as the author of a crime of article 153.2 (minor injuries in the family environment) to a sentence of 3 months with the same accessories and a restraining order, pointing out that there is no basis or legal argument to degrade a mutual aggression between a man and a woman who are partners or ex-partners to a misdemeanor.
Since it is not necessary to prove a specific macho intention because when the man assaults the woman it is already an act of gender violence with connotations of power and machismo, and understands that the fact of mutual aggression in couple should only reflect a blow or mistreatment of work without causing injury to integrate the crime of gender violence and domestic violence respectively without further evidentiary attachments, assessing case by case if there was self-defense in their aggressive response, but can not be issued an acquittal if it is proven mutual aggression.
The Supreme Court understands in this sentence that when the legislator approved the types that punish gender violence in no way wanted to add a requirement of intentional assessment to require that a special intention of domination of the man over the woman be proven for the fact to be considered as gender violence, so that in any case, if there is aggression of the man over the woman it is gender violence, and if there is mutual aggression it is not necessary to prove a behavior of domination of the man over the woman. If the aggression of the man on the woman is proven, the fact is constitutive of gender violence and if there is mutual aggression, as in this case, both must be sentenced for gender violence to the man and family violence to the woman.
In spite of the above, the judgment contains a dissenting opinion by Judges Miguel Colmenero, Alberto Jorge Barreiro, Juan Ramón Berdugo and Carmen Lamela in which it is stated that for these judges, in the account of the facts of the judgment, the superiority or domination of the man over the woman has not been proven and that the automatic application of the so-called "gender violence" to the man without proving the fact of domination is a violation of the right to the presumption of innocence.
