Atlas of Forensic Culture – Spain
By Sara Serrano-Martínez
Violence towards women committed by their male partners is a phenomenon from which we can appreciate many aspects of the history of the Spanish forensic culture (in criminal matters) of around the period 1930-2000. The Spanish criminal types around homicides in the context of a relationship have presented many faces in such period, reflecting the gender culture of the time. In 2004 Spain enacted a transversal law against ‘gender violence’, which has resulted in changes in criminal courts and proceedings, and has increased the protection of victims of such violence (both women and children). One of the reasons behind the introduction of this law was the perception that crimes against women were not properly addressed by the police and the legal system. Some medical experts had also been arguing, since the 1990s, that such phenomenon required a specialized scientific approach. In order to show how a suspected crime committed by a man on his female partner was investigated decades before, we can take a look at an archive case which was investigated since 1956 and judged by the Provincial Court of Girona (in North Catalonia) in 1958. That is, this case was prosecuted and judged during the Francoist dictatorship, the political regime that covered a great part of the period 1930-2000 (1939-78).
Alfonso (pseudonym) was accused of the parricide of his wife, Adela (pseudonym), by the public prosecution. The prosecutor acknowledged that Alfonso maltreated Adela frequently, and he argued that he had killed Adela by kicking her on the belly, causing lesions from which she died. However, the prosecutor believed that Alfonso was not aiming to kill her, and that he had spontaneously regretted his deeds, since he had called for medical help and brought his wife to the doctor. Therefore he argued for the application of some mitigating circumstances—ultimately, he demanded a penalty of eight years of imprisonment. In order to provide the court with the moral background of the accused, the prosecutor recalled that Alfonso had been sentenced as guilty of the crime of (political) rebellion in August 1939, that is, in the first months after the end of the Spanish Civil War, by the Francoist courts. The defense, on the contrary, focused on the character of the victim, Adela. The defense lawyer explained to the court that Adela was an alcoholic, and thus she used to fall frequently. Alfonso denied to have maltreated Adela: he would have only reprimanded her given her ‘vice’. Adela’s death would have resulted from a fall caused by alcohol.
During the trial, three doctors appeared as experts, appointed by either the prosecution or defense. One of these experts was a young general practitioner who had only practiced in Adolfo and Adela’s town for a few months. He appeared both as an eyewitness and as an expert witness, because he had been the doctor to whom Alfonso first brought Adela, and, indeed, he had been the one to report the case as a possible crime. As he had said in his first report, at the trial he declared that Adela presented bruises on her face, and had told him that her husband had been beating her, and he had kicked her on the belly. By that moment, the woman also suffered from extreme abdominal pain, so the young doctor sent them to a clinic, where a surgeon operated on Adela, who presented peritonitis. The surgeon also testified as both an eyewitness and expert witness. According to his testimony, he had not heard anything about maltreatment from Adela: on the contrary, Adela had told him that she had fallen. He believed that given the peritonitis that he observed, it could have been caused by a fall. The young general practitioner and the forensic physician of the investigating court of Figueres (Girona) gave their deposition as experts, as well. They had conducted the autopsy on Adela’s body. As they had already said in their autopsy report during the investigation, they could not tell with certainty whether Adela’s peritonitis, the cause of her death, had been caused by a kick or by a fall on a blunt object.
The Provincial Court of Girona acquitted Alfonso. They declared proven that Alfonso and Adela used to ‘fight’ frequently, but they also found convenient to specify that such fights ‘were primarily caused by the unshakable vice of Adela, of drinking alcohol without moderation, which caused her to fall spectacularly in any place and moment. According to the court, the husband did mistreat her, but this was presented in the judgement as a consequence of Adela’s drinking problem: ‘he reprimanded her frequently and in vain in that way’. The court ruled that the cause of Adela’s peritonitis and subsequent death by peritoneal septicemia had not been possible to determine. In that, they were following the experts’ conclusions, but they also claimed to be building their decision on eyewitness testimonies. One of them, the 18-year-old son of the couple, had declared that the night before his mother’s pain started, he had found her fallen on her face in the house’s corral, and that his father was helping her to sit up.
This case might have been one of homicide, or it might not (we cannot know for sure, especially if we do not trust the legal system of the Franco regime). But, in any case, it is a case that shows the normalization of maltreatment against women in the context of the family and marriage, and how that element was dealt with in a case in which the woman died in possibly-violent circumstances. The proceedings of this case constitute a clear example of the gender culture of the 1950s Spain, a culture in which the alcoholism of the victim was seen as a justification of the maltreatment she suffered by her husband. Moreover, this case allows us to observe the various roles of experts, including a forensic physician, in criminal proceedings, in which, apart from being experts, they could also participate, at the same time, as denouncers and eyewitnesses.
1822
First Spanish Penal Code
Following the spirit of the 1812 Liberal Cádiz Constitution, the first Spanish penal code is passed. This law included an article ordering that a person that did something while sleeping, or being alienated or in delirium, should never be legally considered guilty of a crime.
1843
Pere Mata (1811-1877) occupies the first Spanish chair of legal medicine
1848
New Penal Code
A new penal code comes into effect. This law referred to the lack of responsibility of the ‘insane or alienated’, and it mandated for the first time in Spain that insane people be sent to a specialized hospital, where they should stay until the court decided to let them out (in less grave cases, they could alternatively pay a bail and be supervised by their family).
1882
Criminal Procedure Code
The criminal procedure code comes into effect. Although presented as “provisional”, it will remain in force until at least 2022 (with reforms). This code attempts to turn the Spanish criminal procedure in a mixed adversarial/inquisitorial one, requiring the evidence to be cross-examined and allowing for expert debates on trial. The use of medical expertise was compulsory for investigating judges, and deciding judges are not required to accept any expert opinion: they have to decide scientific matters “in conscience”.
1886
Laboratories of Legal Medicine are created in Madrid, Barcelona and Seville
1888
Trials by jury take place in Spain
Laymen of certain classes begin to decide matters of fact in some criminal cases. After some previous periods of inactivity, the jury will be repealed in 1922.
1899
Criminology institutions grow
Spanish legal practitioners and doctors were interested in criminology, and debated both the works of the Italian Lombrosian school and the French criminological publications. They also created some institutions like the Laboratory of Criminology (1899) and the School of Criminology (1906).
1909
Dactyloscopy is used and debated
The police in Barcelona invited an inspector of Scotland Yard to learn their methods of identification. Federico Olóriz, a Spanish medical doctor who had adapted the dactyloscopy method of an Argentinian police agent Juan Vucetich, advocated for the use of his technique, which was already used by the Spanish Ministry of Grace and Justice. The early years of the twentieth century witnessed many attempts at police modernization and professionalization.
1915
Institution of the Corps of Forensic Physicians
The institution of the Corps of forensic physicians, understood as a group of qualified civil servants attached to Spanish courtrooms, was defined legally in 1915. In the same year, Spanish medical doctors could also apply to this position through a state exam (oposición). Forensic physicians had been associated with Spanish courts before, but the idea of a state-regulated, national corps of experts for the courts was regulated only in 1915.
1920
The first Juvenile Courts open
1928
Dictator Primo de Rivera enacts a new penal code
Besides many other changes that made this code a useful tool for repression in the context of a military dictatorship (1923-1931), the penal code of Primo de Rivera was innovative regarding the lack of accountability in cases of insanity. It required that the suspect was both suffering from a mental condition of ‘pathological origin’ and that it was proven that their condition affected either their awareness of their act’s unfairness, or their ability to act according to their conscience. Thus, this code was the first in Spain to adhere to a mixed—psychiatric and psychological—perspective on the absence of criminal responsibility due to mental disorders (inimputabilidad).
1931
The jury is reinstated again, and women can participate
With the constitution of the Second Republic, juries were once more instated for some cases. For the first time, women could participate in this institution, but only for those crimes that concerned men and women’s relationships. Many legal scholars were against their participation in the jury.
1932
A penal code for the Republic is passed in Parliament
Besides rejecting the new take on the dictatorship’s penal code on mental disorders, going back to the 1848 and 1870 model, the new penal code for the Second Republic included a new precept referring to temporary mental disorders. Its creation had been proposed by psychiatrist José Sanchis Banús (1893-1933).
1933
Law of the idle and malefactors (vagos y maleantes) is enacted
This law allowed to apply security measures to people who were judged as dangerous, despite they had not committed any crime.
1935
Founding of The National Institute of Toxicology
1938
Falange proposes to reform criminal law and procedure with Nazi influences
1940
Institution of the Special Court for the Repression of Masonry and Communism
1941
Creation of the political police of the dictatorship, the Brigada Político Social
It was a key instrument of repression in the Francoist dictatorship (1939-1975) and it was in contact with the Nazi Gestapo.
1942
The First National Conference of Legal Medicine takes place in Madrid
1944
"Escuela Judicial" is opened
1945
The Francoist Supreme Court changes how mental disorders affect criminal responsibility
The Francoist penal code, enacted in 1944, did not change the perspective regarding suspects suffering from mental illnesses: it kept in force the Republican regulation, which only referred to the ‘alienated and they who suffer from a temporary mental disorder’. However, in the 1940s, the Francoist Supreme Court began to argue that a suspect could not be considered irresponsible unless the court knew that, besides being temporarily insane, their condition affected either their awareness of their act’s unfairness, or their ability to act according to their conscience. This meant that, in practice, the framework of the 1928 penal code (psychiatric-psychological, or biopsychological) began to be applied again.
1947
Forensic physicians become authorities in court and reframe their professional identity
After negotiations with the Francoist ministers and high personalities, the Corps of Forensic Physicians instituted a new regulation, which included their consideration of authorities in courtroom, where they were allowed to use of a corporative medal (similar to that which policemen wore), a lawyer’s cap (birrete), and they were granted to report in court located spatially as prosecutors and lawyers.
1954
“The criminal never wins”
A radio serial begins to be broadcasted in Spain: it tells stories (happening outside Spain) of terrible crimes, which focus on how policemen infallibly catch the criminals.
1970
Law of Dangerousness and Social Rehabilitation
1978
Constitution of Spain as democratic parliamentary monarchy
1985
Reorganization and international comparison of Spanish legal medicine
A new law for the organization of courts and justice was passed in 1985 in accordance with the 1978 constitution. The law mandated the creation of regional and provincial institutes of legal medicine and forensic science. Consequently, projects and publications debating how to organize the new legal medicine for democratic Spain followed. In 1988, the Ministry of Justice published a white paper that compared the Spanish institutions of legal and forensic medicine to other European countries.
1995
A brand-new democratic penal code is enacted, and the jury is reinstated
After many reforms, the new Spanish penal code saw the light in 1995. It adopted a psychiatric-psychological perspective on the issue of mental illness and criminal responsibility. A jury began to judge matters of fact in some cases.
1990
The first regional Institute of Legal Medicine is created in Bilbao (Euskadi)
During the Second Republic (1931-36), Spain was constituted as a secular parliamentary democracy. This political regime recognized the possibility of regions’ political autonomy, although it did not validate the declaration of independence of Catalonia, made the same day that the Republic was instituted (14th April 1931). In this context, Catalonia, Galicia, and Basque Country enacted their Autonomy Statutes, although only Catalonia did it before the outbreak of the civil war in 1936.
A military rebellion against the Republic on the 18th of July 1936 caused the outbreak of the Spanish Civil War, which would last for three years and end with the rebels’ victory and the consequent institution of a dictatorial regime led by the general Francisco Franco. Historians have widely described how the Franco regime practiced a systematic political repression of people with leftist ideology (pervasive use of military courts, extrajudicial punishments, mass killings, massive incarcerations, forced labor…): in fact, some scholars argue that the civil war continued up until 1952, in the form of an ‘irregular civil war’. Moreover, some experts qualify the Francoist repression with the international law’s notion of ‘genocide’, according to the United Nations 1948 Convention: in this case, the genocide would have been perpetrated against the internal political enemy of the Regime. Citizens with left-wing views (or those associated with them, or their relatives), were dehumanized, pathologized and attributed putative racial elements (being degenerate) by the Francoist authorities (and some psychiatrists, like the famous Vallejo Nágera), and were seen as a group to annihilate for the good of Spain.
With the enactment of the 1978 Constitution, Spain was constituted as a social and democratic ‘Estado de derecho’ (Rechtsstaat), adopting the form of a parliamentary monarchy. Juan de Borbón, designated by Franco as successor of the post of State Chief, was appointed as the king, as a symbol of the permanence and unity of the Spanish state. This constitution was enacted after the so-called ‘transition’ process, which, after a late-Francoism period of great working-class struggle and political conflicts, revolved around political agreements (the so-called agreements of Moncloa, Pactos de la Moncloa) and a legal interpretation found to allow a change of political regime departing from the Francoist fundamental laws. The constitutional process began after elections, which took place in June 1977. Spain joined the European Economic Community in 1986. A crucial legal framework of the post-1978 Spanish state is that of the 1977 (thus, pre-constitutional) Amnesty Law, which was supported by most democrats in Spain to the extent that it allowed the annulment of political sentences and imprisonments of the dictatorship (that is, excluding the so-called ‘common prisoners’, which had, obviously, been sentenced by a legal system without due guarantees; they protested against the law under the lemma ‘Amnesty for everyone’). However, the Law also excluded the possibility of prosecuting any war and dictatorship crimes of the period 1936-77, thus leading to the complete impunity of Francoism supporters at the eyes of the Spanish justice. This is something that has been very much debated in relation to many political and legal issues, since it affects the possibilities of reparation of victims. The legal validity of the 1977 Law has also been contested in relation to international law and the nature of the crimes in question (qualifiable as crimes against humanity, and thus, according to some, without term of statute of limitations).
With regards to its territorial organization, the post-1978 Spain can be labelled as a decentralized unitary country, with a unique configuration that jurists have named ‘State of the Autonomies’, composed of 17 ‘autonomous communities’ (comunidades autónomas) and 2 autonomous cities (Ceuta and Melilla). The 1978 constitution does not recognize Spanish region’s sovereignty, but rather only some political and administrative autonomy. The official terminology speaks instead of ‘states’, Spanish autonomous communities, however, have in many cases broader competences than German states, for instance.[6] This has led to many internal political conflicts and debates since the very early years of the 1978 Spanish parliamentary democracy, particularly with regards to the Basque country and Catalonia.
During the greatest part of the twentieth century, until the 1978 democratic constitution, Spain was a Catholic confessional state. The exception to this were the few years of the Second Republic (1931-36), when Spain was defined as a secular state, aiming to oust and substitute by new state-dependent institutions the Catholic dominance of cemeteries, education, and health institutions. After the Spanish civil war (1936-39), with the instatement of the Franco Regime, Catholicism was again the official religion of Spain. What is more, the collaboration of the Catholic Church was crucial to the permanence of the Franco regime until the late 1970s: amongst other things, its bond with the Church became one of the core elements of Franco’s Spain’s image before the international community after the end of WWII. Some historians refer to the importance of Catholicism in the dictatorship with the term National-Catholicism (nacionalcatolicismo). The Francoist ideology was also anti-Semitic, and the Franco regime instated a special jurisdiction for the prosecution of communism and Masonry, often referring to the latter in relation to Judaism (judeo-masónico). This religious climate, thus, had various consequences on the legal system, both at the organizational and symbolic level. In the latter sense, it is also remarkable that a crucifix presided over the judges’ bench in all courts during the twentieth century, and still does in some cases today, despite the fact that after 1978, Spain is constituted as a secular and religiously tolerant state.
Jurisdictions
During the Spanish civil war (1936-39) the administration of justice changed in both sides of the conflict. The Francoist justice, after the war, differed from the previous legal system in that the predominant jurisdiction was the military jurisdiction, as well as other, new, special jurisdictions, like those aimed specifically at prosecuting ideological dissidence (for instance, there was a court against communism and Masonry), or the special jurisdiction against those labeled as idle and malefactors (vagos y maleantes), by which people were subject to pre-criminal detention.
Moreover, during the war and the first decades of the Franco Regime, public servants—including forensic physicians, judges, and prosecutors, but also lawyers—were purged due to ideological reasons. Left-wing politicians and militants, labelled as ‘Red’, were the main targets of these purges. The functionaries who had held important positions in the Republican government or the Republican administration of justice were regarded as adherent to the Republican-Communist-Red ideology that the regime antagonized, for instance. In these purges, civil servants had to provide the purging authorities (normally, the elites in the relevant administrative sector) with their professional and political history, declaring their adhesion to the Francoist ‘liberation of Spain’. Crucially, they also had to offer references of politically trustworthy people.
In the transition to democracy public servants of the administration of justice were not purged. Some special jurisdictions of the Franco regime disappeared. Yet, still today, Spain has got a particular set of courts in which crimes of terrorism and other related crimes are investigated and judged, the National Court (Audiencia Nacional), which resulted from the Francoist Court of Public Order (Tribunal de Orden Público).
Criminal law
During the period 1930-2000, there were many changes in criminal law in Spain. With the Second Republic, the 1928 Penal Code of the Primo de Rivera dictatorship was abrogated, so that the 1870 Penal Code was in force again. In 1932, a new penal code was enacted. This code remained in force during the war and the first years of the Franco regime, but with many reforms in the Francoist side and regime, including, notably, the reinforcement of death penalty, which was abolished during the Second Republic. In 1944, a new, Francoist penal law was enacted. It was reformed substantially in 1973. With the 1978 constitutional and democratic framework, death penalty was abolished again, and there were multiple reforms and projects of new penal code. The new, democratic penal code was enacted in 1995.
Criminal procedure
In 1882 the Spanish Law of Criminal Procedure [Ley de Enjuiciamiento Criminal] was passed. According to this legal basis, the Spanish legal system in criminal matters was organized by the accusatory principle. This means that the investigation and the trial were carried out by different courts: the investigation was directed by an investigating judge [juez instructor], whereas trials were presided over by a judge or panel of judges. The accusation was essentially formulated by the prosecutor, who could also request new investigative practices in the intermediate phase of the process. In contrast to other legal systems, in Spain there could also be a private accusation (for instance, the victim) and a popular accusation (like a social group or political party).
The late nineteenth-century reform of the Spanish criminal procedure also led to the enforcement of the institution of the jury for some crimes. However, before the Second Republic, its practice was difficult, and it was only in force in the periods 1870-1875 and 1888-1923. With the Second Republic the jury was not only reinstated, but it was also crucially reformed. Firstly, women could be part of the jury in some cases, those that had to do with public morality or marital relationships, including murder and infanticide amongst others. Secondly, the verdict that the jury had to give in the Second Republic was a yes or no to a set of questions that the judges had written, and the parties had approved after having the opportunity to object to them or suggest modifications (for example: “Did Carlos strangle his wife?” “YES”. “Did María act in a state of temporary mental disorder?” “NO”), rather than a verdict of “guilty” or “not guilty”, as it had been the case before. Judges were no longer allowed to sum up the trial proceedings, as it was usual to do before the Republic, for this was considered to bias the verdict.
In the Francoist dictatorship, the jury was abolished. The 1882 Law of Criminal Procedure remained in force for the ordinary, criminal jurisdiction.
With the 1978 Constitution, Spain acquired a legal framework that allowed for the due process in criminal proceedings, in accordance with the 1966 International Covenant on Civil and Political Rights (signed by Spain in 1977) and the 1950 European Convention on Human Rights (signed in 1979). In 1995 the jury was reinstated for some crimes, and women are now part of the jury without any limitations.
The Spanish gender culture was highly shaped by the centrality of the institution of both the bourgeois and Catholic family. In this model, women were regarded primarily as legally minor, non-working, mothers with the duty to comply with the pater familia’s lead of the family and house. Their out-of-marriage sexuality was prosecuted as a crime and a sin, being the core element of their honour and their family’s honour. This was particularly the case with the instatement of the Franco regime. In practice, however, many women worked, especially those of lower classes, and the early years of the Franco regime were also the gold time of female domestic service.
Looking at the issue of gender from a legal perspective, it is remarkable that during the Second Republic diverse legal initiatives were aimed at recognizing individual rights of women, in coherence with the 1931 Constitution, that recognised the equality of men and women (art. 25), and a civil law recognized women’s civil capacity. Women could vote for the first time in 1932 (after much political debate), and they could also be part of the jury in some cases. Divorce was legalised, and the crime of adultery was eliminated from the penal code. A clause that greatly reduced the penalty for some homicides committed by men on their wives and daughters due to honour reasons was also abrogated. The Francoist legislation reversed all these legal changes of the Republic, so that the civil citizenship of women was again minimalized. The official ideology of the Regime included sexist values closely related to Catholicism and the Fascist ideal of the family as the basic unit of the Nation. For instance, it was even considered a crime for a couple to live together if they were not legally and Catholically married (amancebamiento). Moreover, homosexual relationships were also criminalized and prosecuted by the criminal justice under the penal type of public scandal.
With the 1978 constitution, gender equality became a core value of the Spanish democracy. In practice, sexism was still ingrained culturally, socially, institutionally, and legally. For instance, murders and homicides in marital or affective relationships happened frequently and they were rarely punished by criminal justice. This led to the enforcement of a specific law and the creation of specialised courts since 2004. A triggering event for such legal change was the 1997 murder of a woman by her ex-husband after she had reported the maltreatment she had suffered from him for years in a TV program; days later, he burnt her alive. Afterwards, many people protested, demanding greater protection of women against domestic, gendered violence. The preface to the 2004 law explained that ‘In the Spanish reality, aggressions against women are especially prevalent.’ In 1985, the crime of abortion had also changed significantly, with a reform of the 1973 penal code that had decriminalized abortion under three circumstances: therapeutic (if the mother is at risk due to pregnancy), Eugenesic (if there is a risk of a severely disabling illness in the coming child), and ethic (in case of pregnancy as a result of rape). This reform was highly contested, but it has not overturned. On the contrary, in 2010 a new law introduced the additional decriminalization of all consented abortions practiced by doctors in accredited clinics until the 14th week of pregnancy, although problems of access to this service remain. Some of the problems (for instance, the opposition of some head doctors to the practice of abortion in their clinical service, or the stigma that practicing them can imply for gynecologists) are partly related to the Spanish gender culture, in which many people still regard all abortions as crimes. This is also connected to the prevalence and power of Catholic religion in Spain.
Violent crimes were often reported in local journals, also in the Franco regime. However, in the first years of the regime (1939-1959) this was less frequent, probably due to Catholic, moral reasons and the existence of press censorship. Since 1952, the journal that was more centered in reporting blood crimes in detail was El Caso: Crónica de Sucesos, which was very popular until it closed in the 1990s.
Class had many effects on the Spanish forensic culture. It determined who could be a juror in the Second Republic, since property and income were one of the factors that capacitated citizens for such a role. Moreover, class also shaped, in general, who legal practitioners were in the Spanish forensic culture, since higher education, in practice, was out of reach of the working class during the period 1930-2000. During the Franco regime, moreover, marginalized groups (prostitutes, beggars, travelers…) were subject of pre-criminal detention by a special jurisdiction (which also prosecutor homosexuals), labeled as ‘idle’ (vagos) and criminalized for their mere existence and way of life.
Besides class, the main social divides that can be identified in 1930-2000 Spain are based on processes of racialization and migration. Roma people have suffered from a prevalent and longstanding oppression, that has shaped also legal proceedings by leading to practices of criminalization and undue procedural practices. Democratic, post-1978 Spain, as other European countries, also excludes many migrant people from legal citizenship, making pervasive use of centers for migrants, which function in practice like prisons, and deportation practices, which can also be decided as parts of criminal sentences that imply assessments of residents of Spain’s relation to the country (such assessments have eventually been condemned by the European Court of Human Rights).
Honour has been judged to be a central value in Spanish culture until the mid-twentieth century. This was not simply a top-down imposition: there was a popular and longstanding culture of honour that further maintained a close social and moral scrutiny and punishment for women. Criminal proceedings of the 1940s and 1950s demonstrate that male honour differed from female honour (honra), but they were also interdependent. Individually, male honour became progressively equivalent to their social reputation, as well as closely related to the value of work and of being a good Catholic, whereas female honour continued to refer primarily the sexual behaviour of women, which had to be restricted to marriage and the objective of reproduction, in accordance with the Catholic doctrine and the Spanish gender culture. However, female honour had an impact on the male honour of her family members, and of the family as a whole. This is what shaped, for instance, the article of infanticide, that prevised a lowered penalty for new-born murder if it had been committed due to the compromised honour of the child’s mother. The lowered penalty was applicable both to the mother of the child and to her parents, due to the impact that a woman’s honour had on her family.
One of the main changes in the Spanish criminal law of the period 1930-2000 in Spain affected sexual crimes. This change was introduced in 1989, as part of the many reforms of the 1944/1973 code of Franco regime (other reforms concerned, for example, abortion, and many subjects of new penal code were published and debated). In terms of criminal policy, the key change was that the interest that was considered damaged in sexual crimes was sexual freedom (libertad sexual), whereas before sexual crimes were regulated as crimes against honesty (delitos contra la honestidad). The previous legislation protected mostly women’s honour, which was a social good in the context of the patriarchal, Catholic family, whereas the new one focused on the protection of a human, individual right: sexual freedom.
Relatedly, the new legislation became gender neutral. Before 1989, there was unequal protection of male and female victims, which resulted, crucially, from the protection of women’s and young girls’ ‘virginity’. Rape (violación) was, like in many other countries, a crime that could only be committed against women or girls, whereas when the victim was a man or boy, it qualified as dishonest abuse (abuso deshonesto). In both rape and dishonest abuse, one of these three circumstances had to occur:
1) The perpetrator had used violence or intimidation to commit the crime.
2) The victim ‘lacked reason’ or was unconscious.
3) The victim was under the age of 12.
Yet, what distinguished rape from dishonest abuse was, crucially, the sexual act that had occurred: vaginal penetration qualified as rape, whereas anal buccal or anal penetration, as well as other sexual acts like touching, qualified as dishonest abuse. Besides the gender inequality that this implied, for this distinction consent was not relevant, what was coherent with the fact that the interest under protection was honesty, not sexual freedom. In the same vein, it is important to note that, although these nuances were not included in any law, Spanish legal doctrine and courts demanded that the victim had resisted notably (the mere expression of lack of consent was not enough), and they also denied the possibility that rape or abuse occurred in the context of a marriage, as well as it occurring to a person who worked as a prostitute.
With the enactment 1995 new penal code of democracy, the gender-neutral Spanish legislation of sexual assault was structured, basically, around two key factors: age and the presence or absence of violence or intimidation. Regarding the age of the victim, since a separate crime of sexual assault and abuse of minors (under the age of sexual consent, which was first 13 but changed to 16 in 2015) was introduced, whereas the absence of consent (or its presence as tainted consent) became the common element behind sexual crimes against adults.
The use of violence is what distinguishes the crime of sexual aggression, in which the perpetrator uses violence or intimidation, from the crime of sexual abuse, in which the perpetrator does not necessarily acts violently, but the victim has not consented the sexual act (including, but not only, the cases in which the victim is unconscious) or the perpetrator has obtained the consent by using his or her clear position of superiority regarding the victim. The old term of rape (violación), now gender-neutral, refers since 1995 to one of the various aggravated variants of the crime of sexual aggression: that in which the sexual aggression consists of ‘carnal access’ (to penetrate with a penis or oblige the victim to penetrate the perpetrator with a penis) via the mouth, the vagina or the anus, or of the introduction of objects or other corporal parts (fingers, tongue…) in the vagina or the anus (not the mouth).
The element of violence has been highly debated in Spain in the last years, particularly after the high-profile case of gang rape known as the case of La Manada.[2] After the initial judgement, that convicted the perpetrators of the case of sexual abuse (that is, not sexual aggression with violence or intimidation, nor rape), many people (including many feminist groups) protested, arguing that the case should qualify as rape, given that the victim had been intimidated and penetrated. Various legal scholars criticized the lack of comprehension of legal terms and proceedings that such protests were based on, and many people also prevented against conducting parallel, media trials. The Supreme Court finally accepted t argument, as it was defended in court by the public prosecutor and the particular and popular accusations in the case.[4] Some of these vindications have inspired a very recent project of transversal legislation ‘on sexual liberty’s integral guarantee’, put forward by the Ministries of Equality and Justice and approved in July 2021 by the Spanish cabinet. Amongst other changes to the Penal Code, the project plans to melt the penal types of sexual aggression and sexual abuse in a single penal type, thus eliminating at the level of crime individualization the difference between sexual assault with or without violence or intimidation. In that way, consent becomes the definitory element of the unique crime of sexual aggression.
Before, besides rape and dishonest abuse, there was a separate penal figure, stuprum (estupro), that punished sexual intercourse with underage girls (not boys) from 12 to 16 years old in cases in which conditions 1-3 did not concur, but there were other circumstances which had conditioned the victim’s consent to sexual intercourse, mainly (but not only):
- certain personal circumstances of the perpetrator resulted in a disbalance of power (because the perpetrator had a position of authority, either familial or public: functionaries, teachers, priests…)
- the perpetrator had misled the victim (typically, with a false promise of marriage)
The old penal type of stuprum is not mentioned explicitly in the 1995 penal code, but some jurists still refer with such notion (or that of ‘fraudulent stuprum’) to the variant of sexual abuse prevised in the code for those who commit such crime by misleading a person (either girl or boy) between certain ages (initially, it was 12-16, since 1999, 13-16, and since 2015 it is 16-18, that is, between the age of consent and the acquisition of legal adulthood). In 2015, this penal type was also extended to apply to those cases in which the perpetrator intendedly profits from a position of trust, authority or influence on the 16-18 year-old victim.
In the Spanish criminal law, murder (asesinato) has been traditionally distinguished from manslaughter (homicidio), understood as the act or omission intendedly directed to killing a person, by the additional concurrence of one or more of these circumstances:
- The perpetrator uses methods meant to assure the commission of the crime without the risk that could result from defensive acts of the victim (alevosía);
- The perpetrator commits the crime to obtain an economic benefit;
- The perpetrator commits the crime with flood, fire, poison, or explosive material;
- Premeditation;
- The perpetrator deliberately (and ‘inhumanly’) increments the suffering or the victim (ensañamiento).
In terms of penalty, this legal difference was crucial, since murder could be punished with death, whereas manslaughter did not—except from the period 1931-1936, under the Second Republic’s legislation, when death penalty was abolished after being reinstated during the war and remaining in force until 1978, during the Franco regime.
In the 1995, democracy’s penal code, the conditions for murder were reduced to three: assurance of the result (alevosía), economic benefit, and increment of the victim’s suffering. Premeditation was, thus, eliminated as a condition for the qualification of a homicide as murder.
Another important change that was introduced with the 1995 penal code was the explicit inclusion in the penal code of various kinds of imprudent homicide. Before that, there was a general penal type for reckless imprudence (imprudencia temeraria), in which were categorized those acts and omissions that would constitute a crime in the penal code if the perpetrator had malice. With the elimination of such general clause, the penal code improved its application of the principle of legality, since the cases of punishable imprudence are now set explicitly by the legislator, and a significant decriminalization of imprudent acts, which are only included in the penal code exceptionally (but are, of course, still subject to civil law regulations of negligence).
Moreover, before the full transformation of criminal law in 1995, the Spanish articles about homicides were were highly shaped by gender norms, the value of honour, and the importance of the (Catholic) institution of the family. Apart from manslaughter and murder, there was another penal type (later on, variant of manslaughter) called parricide, which referred, broadly, to intrafamilial manslaughter. Considering this as a separate crime, with an aggravated penalty, was a longstanding legal doctrine, in which Roman law had a great influence. In the Spanish penal codes before 1995 parricides were punished with greater severity than manslaughter, including death in those periods in which death penalty was legal. In 1983, already under the constitutional regime of 1978, the crime of parricide was restricted to immediate relatives, and, after several political and juridical debates, it was no longer included in the 1995 penal code.
Infanticide laws were exceptions to the parricide aggravation of penalty for intrafamilial homicides. Besides, since the 19th century until 1973 (except from the period of the Second Republic), there was another significant exception to this general aggravation of penalty that was set for intrafamilial manslaughters: in cases in which a husband found his wife committing adultery (which was also considered a crime) or his under-23-years-old daughter being ‘corrupted’, he would receive a clearly reduced and privileged punishment (banishment) if he killed either his wife, her lover, his daughter, or her ‘corrupter’. This legal privilege was not included in the penal code as a mitigating circumstance, but rather as a general clause in the title of crimes against people, which further testifies for its ad-hoc nature. This privileged clause can be embedded in what some authors call ‘honour crimes’, that is, those crimes that result from the cultural dependence of the pater familia’s honour on the behavior of his female relatives, apart from being a clear manifestation of the sexist nature of the Spanish culture, society, political regimes, and legal system. In the 1920s there was a debate about this privileged clause, which was excluded from the new 1932 penal code of the Second Republic. This clause was already abrogated at the end of the Franco regime, in 1973.
Murders and manslaughters committed by men on women in marital or affective relationships (independent of women’s adulterous acts), which some authors and legal systems call femicides, were very prevalent in Spain until well into the 1978 democracy. Moreover, by the end of the century it was of common knowledge that these crimes were not investigated properly, implied a great degree of secondary victimization, and often remained unpunished or only received reduced sentences. This led to the enforcement, in 2004, of a specific integral law that aimed at solving these problems and offering a better prevention and protection for maltreated women.
Cooperation to suicide was included as a crime in all Spanish penal codes. In the 1920s and 1930s, Spain witnessed a debate about this crime, both related to the contemporary eugenics movement, changes in the conceptualizations of mental illness and suicide, and the fact that, in the 1928 penal code, enforced during the Primo de Rivera dictatorship, a clause was added to the crime of cooperation to suicide allowing judges to attenuate the penalty depending on ‘the personal characteristics of the perpetrator, his motives and the circumstances of the deeds’ (art. 517). In the 1932 penal code and in the Francoist ones, this clause disappeared. In 1995 the legislator reduced the penalty for those cases in which the perpetrator had acted due to the explicit petition of the victim suffering from a severe illness (either nearly fatal or causing great pain). After many expert and public debates, in March 2021, euthanasia was regulated as a clinical option, and thus the cases of application of euthanasia according to the law since its enforcement (June 2021) have been excluded from such article of the penal code (art. 143).
In the Spanish criminal law, honour was an important category throughout the twentieth century, as it was also in society. As it had been the case in the previous penal codes since 1848, in the 1932 (Second Republic) penal code, the article of infanticide granted a less severe penalty for women and maternal grandparents who killed a newly born child to conceal the dishonour that the birth implied for the mother of the baby. Typically, this applied only to cases in which the mother of the late child was single and regarded as honourable by the court. Cases concerning others involved in the killing of newborns and cases where the honour motive was not proven could qualify as manslaughter, murder, or parricide. The same benefit was conceded to women committing abortion and child abandonment. Familiar honour was a very important value of the Franco dictatorship. Although their penalty increased somewhat, the honour clauses for infanticide, abortion, and child abandonment remained in force during the dictatorship. These articles were finally abrogated in 1995, in the Penal Code of the Democracy, after many juridical and political debates.
Until the institution of the Franco regime, the main institutions that were available for providing experts and expert reports to Spanish courts were the Institute of Legal Medicine, Toxicology and Psychiatry (1914), the School of Legal Medicine in Madrid (1929), and the Corps of Forensic Physicians. Forensic physicians practicing as experts in court cases could either be part of the corps, and thus civil servants, or interim forensic physicians. Moreover, general practitioners were also appointed as experts in the mid-twentieth century, especially in rural areas of Spain. The Corps was created precisely as a way of providing official experts to Spanish courts. To obtain a position in the Corps, medical doctors had to pass a state exam that made sure that they were all-round experts in all disciplines involved in forensic practice (medicine, toxicology, psychiatry, gynecology).
During the war and the first decades of the Franco Regime, public servants—including forensic physicians—were purged due to ideological reasons. Left-wing politicians and militants, labelled as ‘Red’, were the main targets of these purges. The functionaries who had held important positions in the Republican government or the Republican administration of justice were regarded as adherent to the Republican-Communist-Red ideology that the regime antagonized, for instance. In these purges, civil servants had to provide the purging authorities (normally, the elites in the relevant administrative sector) with their professional and political history, declaring their adhesion to the Francoist ‘liberation of Spain’. Crucially, they also had to offer references of politically trustable people.
In 1946, the Corps of Forensic Physicians, now named National Corps of Forensic Physicians, was reformed in many aspects, following, in part, some professional demands of these professionals, according to those of them who were in contact with the Francoist elites and legislative authorities. Following such reforms, in the 1960s a new kind of institution appeared throughout the capitals of province in Spain, the Anatomic-Forensic Institutes. These institutes substituted the old ‘judicial deposits’ for cadavers and practices of autopsy (which, in some cases, had been a mere room in the cemetery, without electricity or water). Yet, despite the creation of the new Institutes forensic physicians continued to work separately in the courts where they had their post. In cities where there was a Faculty of Medicine, however, there was greater collaboration between the academic and forensic world of legal medicine.
Since 1955, there was an official medical specialty on Legal Medicine. However, such specialization was not necessary for passing the exam for becoming a member of the Corps of Forensic Physicians. In the 1980s, already in the context of democratic, post-1978 Spain, forensic physicians continued to complain about of the lack of institutional connection between practicing forensic physicians and researchers in legal medicine and other forensic disciplines. In 1985 the new Law of Organization of the Judiciary included the plan to create Institutes of Legal Medicine and Forensic Sciences, which would integrate research and practice in forensic matters. These institutions were created around the turn of the century in all regions (autonomous communities) of Spain.
Throughout the 20th century, Spanish investigating judges were supposed to appoint experts whenever it was necessary for the investigation. They were obliged to conduct an autopsy when a corpse was found with ‘signs of criminality’. The autopsy had to be conducted by two forensic physicians, or medical doctors, if forensic physicians were not available urgently. In practice, most autopsies were conducted by one forensic physician and a general practitioner, or by two general practitioners, in rural areas. This began to change in the 1980s. Investigating judges also had to order an exam of the “mental state” of the suspect if they showed “signs of mental alienation” [indicios de enajenación mental], but this was less frequently done until the 1960s. According to the principle of contradiction, only the evidence that was presented in the trial and could be cross-examined was legally considered as evidence that could be included in the final judgement. Thus, experts could be appointed by both the prosecution and the defense for the trial. In practice, at least until the 1960s, very often autopsy reports and other expert reports from the investigation were simply read aloud in the trial, for they were presented, and admitted, as documentary evidence. The Spanish forensic culture was not one in which experts’ natural place was the court, but rather the cemetery where most autopsies were conducted, or the prisons where suspects were psychiatrically examined. If they appeared at trial, experts had to testify together if they were reporting about the same subject, and a “third” expert could be appointed if experts did not reach an agreement in their conclusions. In this way, the Spanish forensic culture was shaped by the value of expert agreement or consensus.
Peris’ biography reflects the importance of psychiatry in the forensic culture of the Second Spanish Republic (1931-1936) and the effects of the Francoist regime on forensic experts. Before 1936, he practiced as a forensic physician and published in the Journal of Legal Medicine, Criminology and Forensic Psychiatry (1932). He also published literary works centered on crime and psychiatry, like El lobo en la trampa. He was purged from his position by Francoist authorities in 1941, and he was only allowed to practice again in 1950.
Aznar was a key promotor in the incorporation of forensic sciences to the practices of the Francoist police, and he has even been judged as ‘the founder of today’s Spanish Scientific Police’. He promoted the creation of the Service of Forensic Criminal Investigation of the Spanish police. He was also a professor in the Academy for the Civil Guard. In 1968 he obtained the chair of Legal Medicine at the University of Salamanca. Apart from writing expert reports for courts, he published several articles and books about topics in forensic science, like the analysis of hair and blood stains. He also had a particular interest in criminology and the effects of menstruation on crime.
Piga was one of the foremost figures in the institutional network around the discipline of Legal Medicine of the Francoist dictatorship. He had been a forensic physician and assistant in the chair of Legal Medicine (held by Tomás Maestre) in Madrid since 1916. He became chair himself in 1942, and he began directing the School of Legal Medicine. He directed the Journal of Legal Medicine (Revista de Medicina Legal), the official journal of the National Corps of Forensic Physicians, and he was part of the writing of the 1946 Law of the Corps.
Castellano in 1978, and to gain the post of chair professor of Medicine in Spain, in 1980. More concretely, and she obtained the chair of Legal Medicine at the University of Zaragoza. Before that, she also practiced as a forensic physician (which she continued to do after becoming chair professor) and she had also been a research visitor at the Institute of Legal Medicine in Liège (Belgium) with prof. Armand André, where she learnt about techniques of investigation of paternity, which back then were still not allowed in Spain (during the transition to democracy, 1978-79). Castellano was pioneer in conducting research about violence against women in Spain. After 1980, she has held many positions in Spanish universities and institutions (since 1996, she holds the chair of Legal Medicine at the University of Granada), and she has also been the secretary of the Internacional Academy of Legal Medecine.