Almost ten years ago, Spain passed a controversial law that aimed at eradicating violence against women. It established special courts that would take on gender violence related cases and authorised social measures and financial aid for the victims. Aside from the debate revolving around the budget allocated for this initiative, the law was considered a success by feminist organisations yet at the same time a failure due to its positive discriminatory content.
The law found itself quickly under constitutional revision due to concern for a breach of the principle of equality: assault was to be punished more severely when the offender was a man involved in a romantic relationship with the victim. Nevertheless, it was deemed as constitutional and soon enough, women all over Spain began their journey towards less violent relationships.
We can all agree that, in theory, this particular law is a great step towards empowering women and accomplishes gender equality long-term, but what about in practice? Moreover, is this a case of legitimate affirmative action or should this law be seen as discriminatory towards men? I will try to address both issues in the following lines.
Affirmative action is a term used to describe corrective policies that target different types of discrimination with the purpose of achieving equality in various social areas (education, business, labour law…etc). In other words, states can enforce policies that benefit one social sector at the expense of another if such policies have the objective of diminishing or eliminating discrimination. This practice is not only accepted but praised by the UN Human Rights Committee. With regards to gender violence and the situation in Spain, these kinds of regulations are, in my view, problematic due to their absorption by the criminal law. Whilst I agree with employment and education policies that tend to correct an unequal exercise or enjoyment of freedoms of any kind for women, I fail to see how imposing more severe punishments for violent crimes committed by men helps women exercise their civil, social or political rights. Furthermore, I don’t see why states should eliminate discrimination by violating the principle of equality itself. While it is admirable that states take an active role in eliminating discrimination by legislating, accordingly, it is disturbing to see paradoxical results such as discriminating men to empower women. Limitations on affirmative actions must be imposed, especially when these policies affect the criminal law and other punitive measures.
A further deep concern relates to the procedural rules that apply to gender related trials. My experience in the Court for Violence against Women in Valencia demonstrates that men can very quickly end up in custody as a consequence of a dramatic 112 call to the police made by their loved ones. It seems that in practice, the burden of proof is no longer on the prosecution but on the man in question to demonstrate his innocence. I have seen an enormous number of arrests on suspicion fail to go to trial due to insufficient proof. In fact, statistics show that only 10% of the criminal complaints filed ended with condemnatory judgments. As shocking as it sounds, I have also seen a generous amount of depositions where victims would exaggerate or even lie just to make sure an unfaithful husband would get some jail time. For the sake of painting an objective picture, I’ve witnessed disturbingly real cases of abuse too but I shall address those experiences in another post. Given the broad enunciation and interpretation of the Spanish criminal articles that refer to gender violence, a special set of procedural rules should have been enforced in order to avoid arrests where there isn’t sufficient proof of assault. Furthermore, I believe that Spain can do a better job when it comes to constructing the legal framework that regulates gender violence and thus avoid embarrassing judgments such as the one condemning a man for ‘’passing gas in front of a woman, which undermined her self-esteem and honour’’. Indeed, the current legal framework allows such actions to be deemed as ‘’psychological violence’’. Shameful.
On November 25th we celebrated the International Day for the Elimination of Violence Against Women. I firmly believe that gender violence needs to be better combated and by writing this post I want to illustrate the misconception that fighting one type of discrimination with another is an optimal solution. Indeed, other means simply must be sought. It is essential that states act responsibly when designing both substantive and procedural gender laws and what’s more, Human Rights bodies advocating for affirmative actions should carefully establish limitations to these policies.