Article 1 of Organic Law 1/2004 defines gender violence as violence exercised by a man against a woman who is or has been his wife or partner, with or without cohabitation, and article 44 of the same law assigns these cases to the Courts for Violence against Women. In practice, a gender violence complaint opens criminal proceedings that no longer depend on the person who started them, because the Public Prosecutor keeps them going even if the complainant changes her mind, and they move faster than any other. Within seventy-two hours there can be a protection order with removal from the home and a prohibition on approaching, and within fifteen days a trial and a judgment. I explain it for both sides, because both are on the clock from the first minute.
Evidence that expires today, for one side and the other
If you are going to file a complaint, the first stop is not the police station. If there are injuries, however minor they seem, go to a health centre and say how they happened. The medical injury report is sent to the court automatically and is the evidence that carries most weight later. Photograph the marks with a phone that records the date. Do not delete messages, voice notes or call logs, and do not forward them and then delete the original, because that breaks the chain of evidence. Take screenshots that show the sender’s number and the date. Write down the name of anyone who heard or saw anything, neighbours included. The 016 helpline does not appear on the phone bill. You do not have to file the complaint that same night, but the medical report should be obtained the same day.
If you are the one who has been reported, what decides your position in the next few hours is what you refrain from doing. Do not call or message the complainant, and do not ask relatives or mutual friends to mediate. Do not go to the home, not even to collect clothes. If there is no court order yet, every contact will be read as pressure; if there is one, it is a separate offence. Keep your phone intact, with every conversation, because it is often the defence that needs those messages. Do not give a statement at the police station without first speaking privately with your lawyer, a right recognised in article 520 of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal), and post nothing on social media.
Gender violence complaint, what it is and where it is filed
The law requires a current or past intimate relationship. If the aggressor is a son, a brother or a father, or if the victim is a man, the act is still prosecuted, but as domestic violence, before the ordinary investigating court and with the slightly lower penalties of article 153.2 of the Criminal Code. Fast-track trials are also available in those cases. If the aggressor is a work colleague with whom you have had no romantic relationship, that is not gender violence under Organic Law 1/2004 either, but harassment or whatever offence the facts fit.
A complaint can be filed at any National Police station, with the Guardia Civil, at the duty court or before the Public Prosecutor. The online complaints office does not accept them, because offences with an identified perpetrator and a possible arrest require attendance in person. Territorial jurisdiction is governed by article 15 bis of the Criminal Procedure Act and belongs to the Court for Violence against Women of the place where the victim lives, not where the events took place.
Third parties may file a complaint, and article 544 ter of the Criminal Procedure Act allows the victim’s relatives or the Prosecutor to request the protection order. A strictly anonymous complaint does not exist, although the police may act on their own initiative on what they witness. That the relationship has ended changes nothing, the law protects a former partner equally. Past events can also be reported, subject to the limitation period, which for these offences, all of them less serious offences, is five years under article 131 of the Criminal Code.
What happens in the first 72 hours after the complaint
At the police station a report is drawn up, a risk assessment is carried out through the VioGén system and the victim is informed of her rights, as article 5 of Law 4/2015 on the Standing of Victims requires. Among them is the right to immediate free legal assistance regardless of income, including advice before the complaint is filed, under article 20 of Organic Law 1/2004. If there is evidence of an offence, the person reported is usually arrested, and the maximum period of detention before being brought before the court is also seventy-two hours.
The court takes statements from both and, under article 13 of the Criminal Procedure Act, adopts the first protective measures. If a protection order has been requested, article 544 ter requires a hearing with the victim, the suspect, their lawyers and the Prosecutor within a maximum of seventy-two hours of the request, with a decision at that hearing. The judge may adopt the measures in articles 61 to 69 of Organic Law 1/2004, which are removal from the home, a prohibition on approaching within a distance set in metres, a prohibition on communicating by any means, the withdrawal of weapons, and the suspension of parental authority or contact arrangements. The order also carries civil measures, provided for in article 544 ter itself, on the use of the home, custody of the children, contact and maintenance, valid for thirty days and extendable if family proceedings are filed. Since the 2021 reform of the Civil Code, its article 94 prevents, save for reasoned exceptions, setting contact arrangements for a parent subject to criminal proceedings for violence against the mother.
All of this is entered in the Central Register for the protection of victims, and article 7 of the Standing of Victims law gives her the right to be informed of every decision affecting the suspect’s liberty, even if she has not joined the proceedings as a party.
The fast-track trial for gender violence, from the duty court to judgment
Article 795 of the Criminal Procedure Act expressly lists among offences handled by fast-track trial those of injury, coercion, threats and habitual violence committed against the persons in article 173.2 of the Criminal Code, provided there is a police report and the accused has been arrested or summoned. The court carries out the urgent steps of article 797 during the same duty shift, and the Prosecutor files the charge on the spot.
That is where the most important decision of the proceedings arises, and it is taken within hours. Article 801 allows the detainee to plead guilty in the duty court itself to the sentence requested by the Prosecutor, reduced by one third, provided the sentence requested does not exceed three years’ imprisonment and the reduced sentence does not exceed two. The same judge hands down judgment and, if suspension of the prison sentence is available, makes it conditional under article 83.2 of the Criminal Code on a prohibition on approaching and a re-education programme. What the guilty plea does not avoid is a final conviction, a criminal record and the restraining penalty of article 57.2, which is mandatory. If the victim has joined the case as a private prosecutor, the reduced-sentence plea is entered later, before the Criminal Court.
Without a plea, article 800 requires the trial to be listed before the Criminal Court within the following fifteen days, judgment is given within three days of the hearing and an appeal lies to the Provincial Court within five days under article 803. Where the facts are continuous or the evidence is extensive, the court does not order a fast-track trial and the case continues as a preliminary investigation, lasting months.
Penalties for each form of the offence on conviction
| Conduct | Criminal Code article | Main penalty |
|---|---|---|
| Hitting or mistreating without injury, or minor injury or psychological harm | 153.1 | 6 months to 1 year in prison or 31 to 80 days of community service |
| Minor threats | 171.4 | 6 months to 1 year in prison or 31 to 80 days of community service |
| Minor coercion | 172.2 | 6 months to 1 year in prison or 31 to 80 days of community service |
| Habitual physical or psychological violence | 173.2 | 6 months to 3 years in prison, in addition to the penalty for each specific act |
| Breaching the restraining order or penalty | 468.2 | 6 months to 1 year in prison |
To all of them is added deprivation of the right to hold weapons and, where there are children, possible disqualification from parental authority. Article 153.3 imposes the upper half of the range if the act occurs in the presence of minors, in the shared home or in breach of a court measure. Article 57.2 adds in every case a prohibition on approaching the victim which, where there is a prison sentence, lasts between one and five years longer than that sentence for less serious offences.
At the firm we practise criminal defence and private prosecution in these proceedings from the duty court stage, which is where the protection order and the guilty plea are decided, and we explain it on our criminal law page.
Complaint for psychological gender violence
The Criminal Code does not require physical contact. Article 153.1 punishes psychological harm, articles 171.4 and 172.2 minor threats and coercion, and article 173.2 habitual psychological violence, which the courts assess by the number of acts and how close together they are, not by a fixed figure. Insistent messaging, surveillance and control of the phone or accounts also fit the stalking offence of article 172 ter, aggravated where the victim is the partner.
The difficulty with these complaints lies in the evidence. Mental health reports count, even those predating the complaint, as do messages with their full context and witnesses to changes in behaviour or to specific episodes. A statement describing a general climate without placing events on dates rarely suffices for a conviction.
Gender violence complaint without evidence
The victim’s testimony can be the sole and sufficient evidence for conviction, but the Supreme Court requires that there be no ulterior motive, that the account be credible and corroborated by external data, and that it remain consistent throughout the proceedings. Corroboration need not come from eyewitnesses; the medical report, the state in which the officers found her, a later message or the person she told that same night all count.
For the accused, this means that “it’s her word against mine” is not on its own a ground for acquittal, but also that any material contradiction or a context of separation with a dispute over children or the home weighs in his favour. An acquittal for insufficient evidence does not make the complaint false, and confusing the two leads to private prosecutions that are dismissed.
If you are the one who has been reported
You have the right to a lawyer from the moment of arrest, to know the facts alleged against you and to remain silent. The duty lawyer assists you at the duty court, and if you want one of your own choosing you may call them. With a restraining measure in force, the fact that she messages you, suggests meeting or returns home authorises nothing. Since a Supreme Court ruling of 2008, the victim’s consent does not exclude the offence of breach under article 468.2, which is committed by the person bound by the measure, and it may also have consequences for her. If you have been left without a home, clothes and documents are collected with court authorisation and a police escort. I have covered how to prepare a defence when accused of gender violence in a separate article.
Deciding at the duty court whether to plead to the reduced sentence or go to trial is irreversible, and it affects your job if it requires a criminal record certificate, custody of your children and your firearms licence. The conviction, even if suspended, does not disappear on its own.
False complaint and private prosecution for a false gender violence complaint
Article 456 of the Criminal Code punishes anyone who accuses another of an offence knowing it to be false or with reckless disregard for the truth. Where the offence alleged is a less serious one, like all those in the table, the penalty is a fine of twelve to twenty-four months. It can only be prosecuted once the original case has ended in a final acquittal or a final dismissal, and the judge who dismissed it decides whether to order proceedings on finding evidence of falsehood. Without that ruling, a private prosecution by the acquitted person must prove that the complainant knew she was lying, and the acquittal alone does not establish it.
What changes at work after the complaint
Article 21 of Organic Law 1/2004 grants a working woman who is a victim the right to reduce or rearrange her working hours, to transfer to another workplace with her post reserved, to suspend her contract with entitlement to unemployment benefit, and to have absences caused by her situation treated as justified. Article 23 sets out how that status is proved to the employer, and the protection order or the Prosecutor’s report are the usual documents.
On when a lawyer of your own is needed in addition to the duty lawyer, my view is this. If you are reporting a single incident with a medical report and the Prosecutor is asking for what you need, the specialised duty scheme covers the matter and a further expense is not worth it. A lawyer of your own matters where there are children and a shared home, where the facts are continuous and the evidence has to be built, or where the accused responds with a counter-complaint. For the accused, the difference is that the plea under article 801 is decided within hours, with no room to think it over afterwards.
Frequently asked questions
What does a gender violence complaint involve?
It involves criminal proceedings the complainant no longer controls, investigated by a specialised court and driven by the Prosecutor. Within seventy-two hours a protection order may be granted with removal from the home, a restraining order, a communication ban and measures on children and housing, and within fifteen days a fast-track trial may be held. The complainant has a free lawyer from before filing and the right to be informed of every decision.
What happens if you are reported for gender violence?
Usually arrest, for a maximum of seventy-two hours before being brought before the court, a statement with a lawyer and a hearing on the protection order. If it is granted, you will have to leave the home and may not approach or communicate with the complainant. During that same duty shift you will be offered the choice of pleading guilty to the sentence reduced by one third or going to trial within fifteen days.
What happens when a woman reports gender violence?
The case goes to the Court for Violence against Women for her home address and the Prosecutor drives it even if she changes her mind. Her risk is assessed, she is assigned a free lawyer and within seventy-two hours a decision is made on the protection order. The complaint cannot be withdrawn, and the proceedings continue as long as other evidence exists, such as the medical report or witnesses.
What is a criminal complaint for gender violence?
It is the reporting to the police, the court or the Prosecutor of facts that fit the offences of abuse, threats, coercion or habitual violence in articles 153, 171.4, 172.2 and 173.2 of the Criminal Code, committed by someone who is or has been the victim’s partner. They are public offences, so once filed they are prosecuted ex officio and the victim does not decide whether they continue.
Can I withdraw the complaint once filed? What happens if I regret it or do not want to testify against my partner?
It cannot be withdrawn, because the Prosecutor continues ex officio. What exists is the exemption in article 416 of the Criminal Procedure Act, which allows you not to testify against a spouse or partner, but it is lost if you have joined the case as a private prosecutor or if you already agreed to testify after being informed of your right, under Organic Law 8/2021 and Supreme Court doctrine. With a medical report or witnesses, the trial proceeds without your testimony.
What to do now depends on which side you are on. If you are going to file a complaint, the medical injury report and a complete copy of the messages are for today, and the lawyer comes before the protection order hearing, because that is where housing and children are decided. If you have been reported, the lawyer has to be at the duty court before you give a statement, because the reduced-sentence plea will be offered to you in that same session and cannot be undone. At the firm we practise criminal defence and private prosecution in these proceedings from that first hearing. You can call +34 677 841 007 or write through the contact page.