A report for gender violence sets in motion, almost immediately, a procedure that can lead to arrest, to being questioned within hours and to leaving the family home before any judgment exists. The presumption of innocence still applies, but the precautionary measures are imposed long before anything is proven. In this article I explain what happens after the report, what rights the accused has, and what is decisive to do in the first few hours.
What happens after the report
Once the report is filed, the usual course is the arrest of the person reported or an urgent summons to give evidence, often the same day. The case is investigated by a Court for Violence against Women. At a swift hearing —the same maximum of seventy-two hours that applies to the protection order— the judge decides whether to impose precautionary measures: typically, a ban on approaching the complainant and on communicating with her —the same protection order seen from the side of the person requesting it—, which in practice forces the accused to leave the shared home at once and often restricts contact with the children. All of this happens before trial and without any finding of guilt.
The first statement is decisive
The most delicate moment is the first statement, which in many cases is taken with the accused under arrest and under pressure. What is said there shapes the rest of the proceedings. That is why having a lawyer from the very first minute is not a formality: it is what prevents a hasty statement, made in the belief that it will clear everything up, from becoming the main evidence for the prosecution. Remaining silent and not testifying against oneself is a right, not an admission.
Your rights
The accused has the right to the presumption of innocence, to be informed of the facts attributed to him, to remain silent and not to plead guilty, to a lawyer —of his choice or court-appointed— and to an interpreter if needed. He has the right to propose evidence and to have the facts in his favour investigated as well. The report, on its own, is not a conviction: it is the start of a procedure in which the accusation must be proven.
The real weight of the process
It is worth being realistic about what it involves. The precautionary measures are imposed from the outset and are burdensome: leaving the home, a restraining order, and an immediate impact on any divorce or custody proceedings running in parallel. An accusation of this kind conditions the life of the accused from the first day, regardless of how the case ends. That is why the defence must be built as soon as possible and with judgement, without waiting for the trial.
False accusation: what can and cannot be done
Many accused people ask whether they can, in turn, report the person who accused them. Making a false accusation is a crime (article 456 of the Criminal Code): it is committed by someone who attributes criminal acts to another person knowing them to be false, or with reckless disregard for the truth. In this scenario the roles are reversed —the accused man would be the victim, and the woman who reported him, the possible offender—, but the law sets two conditions that explain why it succeeds in so few cases.
The first is procedural: proceedings for a false accusation cannot be opened while the main case is still alive. That case must first end with a final acquittal or a final dismissal, and it is the court itself, in that decision, that decides whether to order proceedings against the person who reported. The accused cannot, on his own and midway through the process, set that punishment in motion. The second condition is one of proof: being acquitted for lack of evidence does not mean it has been proven that the report was a lie; it must be established that it was made in the knowledge of its falsity, and that is very difficult.
One point surprises many: the complainant’s retraction or withdrawal of the report does not close the case. Gender violence is prosecuted ex officio, so the Public Prosecutor can maintain the accusation even if she no longer wishes to continue. That is why an effective defence rarely consists of announcing a false accusation; it consists of dismantling the prosecution evidence and building the exculpatory evidence from the first moment.
What to do, specifically
Do not give a statement without a lawyer. Do not try to contact the complainant to sort things out: contacting her breaches the restraining order and is a fresh offence (article 468 of the Criminal Code). Keep everything that may serve as exculpatory evidence —messages, emails, call records, witnesses, any data that places or gives context to the facts—. And find legal representation specialised in criminal defence as soon as possible.
At the firm we take on the defence of people accused of gender violence from criminal law, with the discretion the matter requires. If you have been reported, or fear that you will be, you can write to us from the contact page before taking any step.
Frequently asked questions
I have been reported for gender violence, what should I do first?
Do not give a statement without a lawyer and do not contact the complainant. The first statement shapes the whole procedure, and contacting her breaches the restraining order. Find legal representation specialised in criminal defence as soon as possible.
Can I be removed from my home before the trial?
Yes. Among the precautionary measures the judge may impose in the first seventy-two hours is a ban on approaching, which in practice forces the accused to leave the shared home at once, even without a judgment.
If the complainant withdraws the report, is the case dropped?
Not necessarily. Gender violence is prosecuted ex officio: the Public Prosecutor can maintain the accusation even if the complainant no longer wishes to continue. Withdrawal does not end the procedure on its own.
I have been falsely accused, can I report the complainant for making a false accusation?
Not immediately or on your own. A false accusation (article 456 of the Criminal Code) would be committed by someone who accuses another knowing they are lying, but the law only allows it to be prosecuted after the main case ends with a final acquittal or dismissal, and it is the court itself that, in that decision, decides whether to proceed against the person who reported. Moreover, being acquitted for lack of evidence is not the same as proving the report was false. That is why it succeeds in very few cases, and the defence usually focuses on dismantling the prosecution evidence.