Domestic Violence offences in Spain: Types and Penalties

Domestic Violence Offences in Spain: Types, Penalties and Differences from Gender-Based Violence

The types of domestic violence under the Spanish Criminal Code are not limited to physical assaults. They cover very different forms of conduct, with equally varied penalties, and apply to a wider circle of persons than gender-based violence. Confusion between these two legal concepts is common and has direct legal consequences for the person reported.

Understanding the differences, the criminal offences involved and the penalties provided for by law is essential in order to guide any defence strategy from the very beginning.

What is domestic violence and how does the Spanish Criminal Code define it?

The Spanish Criminal Code mainly regulates domestic violence in Article 173.2 of the Spanish Criminal Code. This provision punishes anyone who habitually exercises physical or psychological violence against certain persons in their environment: a spouse or partner, whether current or former, descendants, ascendants or siblings, minors or incapacitated persons living with the aggressor, and other persons integrated into the family household. Habitual conduct is the central element: it does not require previous convictions, but rather a repeated pattern of behaviour.

Unlike gender-based violence, domestic violence does not require the aggressor to be a man or the victim to be a woman. The perpetrator may be any member of the family or household. In addition, the protected legal interest is not only physical integrity, but also the dignity and moral integrity of the person living in that environment. Therefore, repeated psychological abuse is also included within this criminal offence.

Article 173.2 of the Spanish Criminal Code provides for imprisonment from six months to three years, deprivation of the right to possess and carry weapons for three to five years and, where appropriate, special disqualification from exercising parental authority. In addition, the judge may impose a prohibition on approaching or communicating with the victim as a restraining measure. Consequently, the criminal consequences are serious even where no proven physical injury exists.

Most frequent types of domestic violence: conduct and real-life situations

Domestic violence covers very different forms of conduct. Physical violence is the most visible: assaults, pushing, injuries. However, psychological violence — repeated insults, humiliation, excessive control over the partner or children, veiled threats — is equally punishable and, in practice, more difficult to prove. In recent years, cases involving economic violence and control of communications within the family environment have also gained procedural relevance.

From the defendant’s perspective, the most frequent scenarios in practice are the following. The first is a report for habitual abuse without proven injuries, based solely on the victim’s statement. The second is a cross-complaint — where both members of the couple accuse each other — which requires careful analysis of which version is more credible and what corroborating evidence exists. The third is a complaint filed in the context of contentious separation or divorce proceedings.

In all these cases, the legal classification of the facts — whether they amount to domestic violence or gender-based violence — determines the competent court, the applicable precautionary measures and the penalties at stake. Therefore, this distinction is not merely academic: it has immediate procedural consequences from the moment the complaint is filed.

Key difference between domestic violence and gender-based violence

Gender-based violence, regulated in Organic Law 1/2004 and in specific provisions of the Spanish Criminal Code, requires the aggressor to be a man and the victim to be a woman who is or has been his intimate partner. The distinguishing element is the relationship of domination as the context of the aggression.

Domestic violence, however, covers relationships between any members of the family household, regardless of sex. This distinction determines whether the case is heard by the Court for Violence against Women or by an ordinary criminal court.

What the accused can do: defence in domestic violence offences

The defence in this type of case requires immediate intervention. From the moment of arrest or the first court summons, the accused must have legal assistance to analyse the complaint, assess the existing evidence and define a strategy before making any statement. A poorly directed statement at the police station or before the duty court may irreversibly compromise the accused’s position.

The defence may act on several fronts. First, it may challenge the precautionary restraining measure if it lacks sufficient basis or is disproportionate, requesting that it be lifted or modified. Secondly, it may request investigative measures capable of providing exculpatory evidence: witness statements, medical reports, communication records, call logs or messages. Thirdly, it may challenge the credibility of the complaint where there are indications that the criminal process is being instrumentalised.

At Fechenbach Abogados, David Fechenbach Marcos, ICAM No. 122770, personally handles the defence in domestic violence offences from the earliest procedural steps. The firm operates in Madrid, Ibiza and Cádiz, and provides assistance in Spanish, German and English. The correct legal classification of the facts — distinguishing domestic violence offences from gender-based violence offences — is one of the first analyses carried out in each case.

However, the defence does not end at the investigation stage. If the accused is ultimately brought to trial, the strategy must focus on witness evidence, psychosocial reports and the internal consistency of the prosecution’s version. In these matters, the assessment of the victim’s statement as incriminating evidence is decisive.

Consequences of failing to act with specialised legal assistance from the outset

Domestic violence offences trigger precautionary measures from the very beginning: prohibition on approaching the victim, prohibition on communication and, in some cases, a restraining order preventing the accused from returning to the family home. These measures are adopted urgently, sometimes without the person under investigation being heard beforehand. Without a lawyer appearing at that first hearing, the accused loses the opportunity to limit the scope of those measures from the outset.

In addition, the absence of technical defence at the initial statement may lead to contradictions that the prosecution will use at trial. In this type of proceeding, the investigation is usually brief and the deadlines for proposing evidence are strict. An investigative measure not requested in time cannot be added later to the proceedings. Therefore, acting late often means giving up essential exculpatory evidence.

Furthermore, a conviction for domestic violence carries, in addition to imprisonment, ancillary consequences that directly affect family life: suspension or restriction of parental authority, contact arrangements with children and, in many cases, loss of the right to reside in the family home. These consequences are not easily reversed once the judgment becomes final.

Contact Fechenbach Abogados

If you have received a complaint for domestic violence or are under investigation, Fechenbach Abogados can analyse your case from the very beginning.

We provide assistance in Madrid, Ibiza and Cádiz. Contact us without obligation at fechenbach.es.