Spanish criminal courts interpretation of discrimination by gender reasons: the aggravating circumstances in the Spanish criminal code.

• In Event: Adjudication: pleas, courts and sentencing

Abstract

The principle of equality stated in Article 14 of the Spanish Constitution is the main tool for enacting public policies against any discrimination before the law. Regarding criminal law, this principle, along with other European Covenants, mandates the Spanish criminal system to enable mechanisms that fight against the violation of fundamental human rights. Consequently, the 2015 and 2021 reforms of the Criminal Code created different dispositions that allowed judges to impose higher penalties for crimes committed based on motives of gender or gender identity. The aggravating factor of committing a crime based on gender or gender identity is mainly related to the denial of the equality principle and the result of discrimination.
Moreover, gender studies have impacted our society. Feminist debates have carried out introspection in the social and cultural construction of what it means to be a woman or a man. That sets an important precedent in showing how State policies ‘neutrally’ consider the status of citizenship for everybody to be equal. However, this introspection has shown us how women and other minorities live their lives in real terms without having their rights guaranteed.
Preliminary results show that case law in Spain understands the meaning of gender in human beings actions within the cultural understanding of roles assigned to femininity or masculinity of women and men. With it, interpretations are rooted in historical conceptualizations of crimes previously codified but now repealed.
The paper proposes a new legally protected interest coming from the prevention of crimes based on gender reasons, that is the freedom of development of the personality. Based on postmodern feminist theories, interpretation should go beyond gender representation and improve the life of humankind as a whole.

Author

• Bárbara Lirios Monllor Taltavull, Autonomous University of Barcelona