Women and children versus domestic violence. Legal reflections, needs and challenges in Spain today

Abstract

Violence against women and girls or gender-based violence is a form of discrimination that constitutes ‘violence that is directed against a woman because she is a woman or that affects women disproportionately’. Violence against women has carelessly become a significant global public health problem affecting one-third of women in the world in 2013. Killings of women and girls by their male partners or ex-partners are not isolated incidents, but constitute ‘the ultimate act of violence that is experienced in a continuum of violence’. Gender-based domestic violence remains the most prevalent form of violence against women and girls that affects women of all social strata across the world. Violence against women, in the private sphere and in its different manifestations, is tantamount to violations of the rights to life, equality, dignity and non-discrimination, the right not to be subjected to torture and to other cruel, inhuman, or degrading treatment or punishment, the right to liberty and security of person, the right to equal protection under the law, and the right to equality in the family, among other human rights. In addition, children who are victims and witnesses of that gender-based domestic violence suffer adverse effects on their health and in other ways also are ‘severely negatively impacted by [that] violence’. However gender-based domestic violence measures to protect child victims and witnesses of gender-related domestic violence remain weak in spite of the undeniable consensus among States on rights applicable to child victims and witnesses of crime. This article provides an overview of the issue of gender-based domestic violence and analyses the consideration given to the woman and child (of that woman) – both victims of intimate-partner domestic violence under international law and regional European law, and, in addition, under Spanish domestic legislation. The article highlights the latest developments in those three legal settings, including the forthcoming entry into force of the challenging and most comprehensive legal instrument on violence against women in the world today, the Istanbul Convention. The Convention provides at last formal (through judicial practice and legal instruments) recognition of children who witness gender-based domestic violence as victims of that gender-based violence. Also reviewed are recent jurisprudence/judicial practice, legal developments and challenges on this important subject in Spain. Final recommendations based on the aforementioned international, regional and domestic analysis are made to the State of Spain, recommendations applicable indeed to the practice in any country seeking international human rights compliance, good practices and redress, in an effective fight against gender-based domestic violence.