1.

Final exam: 50%

2. Come to class + writing exercises in class (individually): 50%
 8th March
 26th April
Type of exams: two parts. In the first part we have short questions with definitions (7-10,
maximum of 5 lines to answer), key concepts, examples; in the second part we have one or
two long open questions to give a point of view – a critical perception about what we’ve seen
during this time (give an example of my national area of something, for example, sexual
violence).

Chapter 1. The false neutrality of the Law

 Sex: it is the biological concept to name the genetically determined patters of the
human being, impossible to be modified, and according to which, human being are
classified as female (female reproductive system XX) and male (male reproductive
system XY). Those systems are the genitals a person was born with. 
 Gender: cultural construction to be transmitted through education and culture, can be
modified, and according to which, society classifies the persons in women and men. In
this case we classify a person as a woman or a man from some typical way of dressing,
behaviours, or characteristics. Examples: girls tend to like pink and boys, other colours.
In our societies, woman are the people who take care of the people and man are the
ones who work to maintain financially the family.
 Stereotypes: preconceived ideas, attitudes, and values regarding a person according to
their age, sex, ethnic origin, or other characteristics usually very rigid and difficult to be
changed. A stereotype for women is that all the women have the maternal instinct,
and they will want to be mothers one day.
Example of education, not hormones: how women and men drive. Even though when
in an argument between a man and a woman the man says, “woman you had to be!”,
the reality is that men commit much more traffic accidents per year than women.
That’s an example of a social construction (what we think it’s typical for men and what
is typical for women).
 Roles: functions, tasks, responsibilities, and privileges created as demands or
expectations that once they are assumed by the person, it becomes part of their
personality, and their context expects to behave according to them.

Biological speech
In our society we have a lot of biologist speech because of the importance of the science, such
as people try to think that women and men have different brains so they must have different
roles in the society. And if those differences come from natural sources, it means that is good,
and if this is good, we can continue with it. The same happens with and hormonal explanation
which is supposed to explain that the women are prepared for some type of works or tasks
such as being the one who takes care of the babies, meanwhile the man is more likely to have
some determined behaviour (more aggressive for example).
We usually compare the humans with other animals to relate some attributes with men or
women; for example, when we compare the human with the lions, we want to say that women

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must fight for every single thing they want to achieve while men can lie in the ground and
expect to be everything given.
There are also gender differences in different cultures. One of the clearest examples is the
menopause: if you go to the Japanese culture they don’t have a specific word for the period
where the women stop being fertile but in the occidental cultures is a crucial moment in the
women and even in the men lives.
But many of those differences that we attribute to men and women are mainly social
justifications more than biological or scientific explanation about the differences. Is our
responsibility to change these attitudes.

Cultural construction of gender

The feeling to be a woman or a man does not have a biological explanation. It is a result of a
cultural configuration in contact with each social context. This is crucial from a legal point of
view because some legislation is based in the sex, other one is based on the gender and maybe
we can find some legislation about the gender identity (the intimate feeling of being woman,
men or whatever you feel). This social construction comes not only from our family but from
the publicity in the television, the films, the schools or even the law (in some cases we may
think that we are giving the same consideration to all the detail but maybe if the person who
commits the delict is a man or a woman the consequences could vary). 
The alternative that the society is trying to apply nowadays is to raise the babies in a neutral
way: not relating the boys with the blue colour and girls with pink, boys with trousers and girls
with skirts… But that could be much more difficult that we think in advanced because there is
no rule or guidelines to follow and there are lots of obstacles from the society and the older
generation that may cause not what we are trying to achieve with this neutral way of raising
babies. But with time and education those obstacles are supposed to disappear: if you
compare our generation with our parents’ generation there are lots of changes and advances
that would have seemed impossible 20 years before.
Why do we have to claim which is our sex to de State and make it public? To control the
population. Depending on our sex de legal system is different.

Language and stereotypes

On some occasion we use some adjective or situations only for men or women. For example, if
a woman if acting “strange” the normal question is “are you expecting your period?”. But if it’s
the man who acts “strange” no one will ask him if it’s caused by his testosterone. This is
related with the hormonal explanation we talked before, and if a man can be described by his
hormones this theory would lose credibility since we have been following this theory for lots of
years.
That also happen with physical characteristics such as the corporal mass: if a man is in
overweight you usually say that is a “plump man” but if it’s the woman who is overweight (and
it doesn’t care if it’s much or less overweighted) we usually call her “curvy woman”. And this
distinction continues with the idea that if a man has some extra kilos it’s completely normal
but it’s not normal for a woman to has those extra kilos.

What is normal?
Sometimes the law gives recognition to what the society calls as normal such as being a
heterosexual man or heterosexual woman. But there are much more human beings that do
not correspond to this classification. For example, there is a 1% to be born with some anomaly
in the sex difference such as have the two types of genitals or not having anyone, making

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difficult for the doctors to assign a sex to that baby. This shouldn’t matter but nowadays it
matters because assigning the baby with a sex will condition his/her life: they will be raised in
one way or another, they will have some type of clothes or another, their sexual orientation
may depend on if they are man or woman… It may also affect some crucial decisions they may
take after a few years such as trying to change their sex if they don’t feel comfortable with the
sex they have been born with (transsexual people).
If we focus on the laws, we can see that the only references that are being done are to men or
women. We can’t see any example of a law talking about the transsexual people, the non-
binary people or the gender fluid people; apart of the specific legislation about each example
(the

transsexual people law for example). There are some attempts of changing the law to making
possible for the people to not be assigned into a sex from the birthday but to do it later on
whenever the person considers he/she can consider itself as a man or a woman.

Sexual and gender binarism vs. intersexual, transsexual persons

 It is estimated that 1/100 births, there is some anomaly in the sex difference. It’s not
that easy to say if the baby is a boy or a girl, so the parents must reach to a decision.

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  It is estimated that 1/2000 births, the babies have some ambiguous genital organs that
make it difficult to assign a sex.
 Body processes are also cultural built: the increase of pre-menstrual stress after the
World War II to send out women from the labour force of the lack of menopause
symptoms in certain cultures?

Patriarchy
The patriarchy is a social system in which men hold primary power and predominate in roles of
political leadership, moral authority, social privilege and control of property. It is a male
dominated power structure in a certain society an in individual relationship. Power means
privilege. It is a system where men have more power and privileges than women.
We are supposed to have a neutral legal system, where everyone is the same, but we can see a
lot of androcentric characteristics such as the language used to express the legal framework.
For example, we have more or less an idea about what is the justice in the society but when
you go to a specific field like the family, we don’t have a fair idea about the family.
On many occasions the law talks in very general terms or in very specific terms. An example of
overgeneralisation is when the law considers that all the women want to be mother and
regulates all the situation the same way; and an example of the over specification is when the
law only talks about the women in specific regulation such as the life in jail, where the women
have rights that the men doesn’t (to have their children until they are 3 years old, private
rooms to the lactation…).
Another problem of the patriarchy and that is reflected in the fake neutrality of the law is the
gender
blind.
This
can be

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explained in the working field, where more or less you have to achieve certain things or merits
to get promoted in your job, but it doesn’t care if you are a woman or a man, and this can be
very important for example when a woman gets pregnant and takes the maternity leave: she is
“losing” this time to achieve those things to get promoted, whereas the men doesn’t. That’s
one of the main reasons men have much more important job position than women, apart from
the women discrimination itself.

Neutrality of the law

The law is not neutral as we thought at first. Here we can find some characteristics:
1. Androcentric: model of citizen. In our legal system we have. Labour law that figures a
maternity live (a period of time in which women have the right to stop working).
Another example is when old people need to receive a pension income because they
are not able to work any longer, they had to work, previously, full-time for some years.
2. Familyism: family unit (parents + their children). Even though, the family unit may be
different in different countries.
3. Sexual dichotomist
4. Ought to be of each sex
5. Overgeneralization
6. Over specification
7. Gender blind

Formal equality
Formal equality means the norms treat everyone the same, but as we have been seen it isn’t at
all. Individual should be treated alike, accord to their actual characteristics rather than on the
basis of assumptions or stereotypes about their sex, race or other irrelevant characteristics.
E.g.: Article 14 Spanish Constitution: “Spaniards are qual before the law and may not in any
way be discriminated against on account of birth, race, sex, religion, opinion or any other
personal or social condition or circumstance.”

Substantive equality
Otherwise, we can find the substantive equality which means to achieve equality in the results,
considering the differences and sometimes the unequal starting points. We can see this in the
article 9.2 of the Spanish constitution.
E. g.: Article 9.2 Spanish Constitution: “It is the responsibility of the public authorities to
promote conditions ensuring that freedom and equality of individuals and of the groups to
which they belong are real and effective, to remove the obstacles preventing or hindering their
full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural
and social life.”

Discrimination
The discrimination it is the result of certain practice or negative treatment for a certain group
traditionally marginalized in a society, without and objective justification. There are lots of
examples of discrimination in the history of our society and based in very different aspects
such as the skin colour, the sex, the gender, the nationality, the ethnic… E. g.: prohibition for

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women to become judges in Spain until 1966. Explanation: to protect women, to prevent them
to deal with violent cases (such as rapes).
We can make a differentiation between direct discrimination and indirect discrimination. The
direct discrimination is when there is a clear and direct act against a certain group excluding
them from a full enjoyment of their rights and liberties (for example, women can’t vote in the
election or drive in certain countries). In the other hand we have the indirect discrimination,
that is a formal equality and neutral treatment that produces negative effects for a certain
social group; the impact of the state’s laws or practices disproportionately affects persons
because of their sex (demand of same physical exams to become a police officer).
You can also see some cases where the law gives different treatments between men and
women, but they aren’t discrimination because they don’t provoke any damage for none of
the groups. For example, the pregnancy sick leave is one of those cases because it is normal
that the mother has more time to recover than the man because she is the one who has
delivered the baby.

Inequality or difference
Inequalities in certain situations between women and men, that do not provoke damages for
any group. E. g.: pregnancy sick leave

a. Direct discrimination
Direct discrimination is when there is a clear, and direct act against a certain
group excluding them from a full enjoyment of their rights and liberties. E. g.:
women cannot vote in elections. Women cannot drive in certain countries.
b. Indirect discrimination
Is a formally equal and neutral treatment that produces negative effects for a
certain social group. The impact of the state’s laws or practices
disproportionately affects persons because of their sex. E. g.: demand of same
physical exams to become a police officer.

Check: for an indirect discrimination example in my country

Multiple discrimination or intersectionality

Intersectionality both notices and contends with the realities of multiple inequalities, the
interaction of those inequalities provokes a multidimensional oppression different to a mere
adding of discrimination factors (discrimination suffered by a black, lesbian and migrant
woman). You get discriminated in several ways at the same time because of multiple facts
about your gender, sex, sexual orientation…
Positive action is a temporary measure, which will be cancelled once substantial equality is
achieved. It aims at changing situations, stereotypes, behaviours or cultural practices that
maintain a certain social group discriminated. The origin of the positive action was the action
took to help ethnic minority group’s access to universities in the USA, but nowadays you can
find more examples of positive or affirmative action like the obligation of a minimum quota of
disabled workers in the companies or a minimum quota of female candidates in the political
parties list of candidates. In its origin this idea was very controversial because the people who
was discrimination this ethnics minorities thought they were being discriminated by this

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positive action because there were less white protestant people entering to the university, but
with the time it has been proved that that action wasn’t discrimination for them. 
But what happens if the positive action is taken towards a social group that is not usually
discriminated? For example, almost all the people who works as nurses are women, and you
could put a minimum quota of men in the nurses positions. This haven’t been seen as a
positive action because men are the predominating social group in our society even though the
aim of the positive action (let a prejudicated group being compensated) is to get the equality
among the different groups. From the legal point of view we can only consider something as a
positive action if the social group we are trying to help with the action is being traditionally
discriminated and not only underrepresented (men in nursing are underrepresented but not
discriminated) even if the other requisite of the positive action (to get the substantial equality)
is fulfilled.

Vertical and horizontal segregation

Vertical segregation is when a discriminated social group occupy the lowest occupational levels
in a certain professional sector. You can find several financial sectors that have lots of women
working on them, but if you take a closer look you see that the women occupy the lowest job
position while men occupy the power positions (in the nursing sector you can see that the
normal workers are mainly women but the directors and similar are men).
The horizontal segregation refers to those cases where women occupy the worst paid and
valued professional categories or sectors. For example, in the cleaning sector you can find
different categories to justify some differences in the salary or the job conditions, even
sometimes the jobs are mainly the same (cleaning ladies focus on cleaning the floor or the
insides while the window cleaners focus on cleaning the outsides; both of them use chemical
products and clean as the main job but the jobs full of men are better paid than the jobs full of
women).
Sometimes you can find a consequence of this segregation called pay gap. This concept means
the difference between the average pay of two different groups of people without any
legitimate justification or explanation. The principle of equal pay for equal work is supposed to
be granted but nowadays we don’t have it granted. A parallelism to explain this situation
would be to rob every month a certain quantity of the salary but only to a certain group, but
with the society doing anything with the robbery. 

Chapter 2. Citizenship, Gender and the Welfare State

Origins of the Rule of Law
Most of us live in countries where you can see the Rule of Law. That means that the authorities
can’t do whatever they want whenever they want and however they want: they have the limit
of the law. Its origins are found in the French revolution, where the people thought that the
idea of having a King by the sake of God doesn’t fill in any more with their ideologies, so they
put the limit of the law as an expression of the society desires. 
This liberal rule of law was thought to protect some ideas proclaimed in the French revolution
such as the Minimum State (the State only has to appear for granting the minimums and to
protect the most affected) and some rights and liberties that were core of the French
revolution (right to freedom, right to private property and right to life).

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It is very important to know what rights are protected by our legal system because not all of
them are granted by the different constitutions, and maybe those which you consider more
important are not granted but other are.  In the Spanish regulation you can find them in the
very beginning of the Constitution. Examples of the different rights that are mostly protected
nowadays in most of the countries are the active and passive suffrage (the possibility to choose
our political representators or to be chosen as a representator), the right to freedom, the right
to private property, the right to life (here you can find the definition of the legitimate defence
in all the different ways it is explained) and the right to bodily integrity or to privacy. But even
the rights are the same, at least the idea of those rights, depending on the country you are it
can change heavily:
 In the USA the private property also covers the car for example, while in the UE it
doesn’t. This can affect for instance to the fact that the police can register your car
with or without a judicial order: in the USA the police can’t even access to your car or
to you if you are inside your care because for them it is private property
 The legitimate defence is also very different among the USA and the UE: in the USA
have a more open concept of the legitimate defence and is very much used and
applied in the courts, but in the UE it is very restricted and has lots of rules to be
applied
From time to now there have been and evolution in this Rule of Law towards what nowadays
we call the Social Rule of Law:
 Now we have to grant the universal suffrage and not only for white men with
properties as it was in the beginning
 The civil and political rights continue being the most important rights to protect but
now the State doesn’t have this negative aspect that obliged it to only act when there
was a violation. Now it can act to protect much more and in prevention of violations of
those rights
 Development of the Welfare State – concept of labour citizenship: the minimum
state of welfare that must be granted by the state has been raised but we keep having
the problem about the citizenship. We like to say the state of welfare is granted for
everyone but in fact it is only granted for the citizens. In that case the question is: who
are those citizens?
 Objectives of social justice.

Social and economic rights: social rights connected to a model of labour citizenship:
contributory and non-contributory benefits.
There are rights that are recognised for every citizen but there are also other rights that are
only recognised to some people related to a model of labour citizenship. For example, the
education right is granted to everyone from 3 to 16 years old, but the healthcare right is only
recognised for those people who have been working for a certain period of time. Normally the
rights linked to the labour model are the social and economic rights (you must contribute to
have access to those rights).

Who is a citizen?
In every country we will find different rules to understand or be considered as citizen. National
and citizen are not synonyms. One of the conditions to be considered as a citizen is to be able
to participate in the labour market, then, I will have certain benefits and rights.

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In Spain we have three ways to get the Spanish citizenship:
 The first one is called the ius sanguinis and is contained in the article 17 of the Civil
Code. This way gives you the Spanish citizenship by having Spanish parents, even you
are born in another country you can have this citizenship just by having Spanish
parents.
 The second one is the government decision, contained in the article 21 CC. In this case
is the government who decides that one person must be Spanish for some reason. You
can find this way applied mostly on famous people such as professional athletes,
mainly because if they are Spanish, they can participate in competitions under the
Spanish flag
 The third way is the legal residency, contained in the article 22 CC. This way lets you
get the Spanish citizenship if you stay in Spain for 10 years (this is the general rule,
there are some exceptions where you can get the citizenship after only 2 years).
In other countries people would acquire the nationality by ius solis.

Exceptional forms to acquire nationality

Power point class: Spanish Alien Act Art. 13 CE (LO 4/2000, sobre derechos y libertades
extranjeros en España y su integración Social).
Asylum law: (Ley 12/2009, reguladora del derecho de asilo y de la
protección subsidiaria).
There are also other “exceptional” forms to acquire the nationality such as the asylum (you
can find the regulation for this form in the asylum law 12/2009). Asylum is called to be a
human right since we have it reflected in the Constitution, specifically in the article 14 and also
in the Universal Declaration of Human Rights of 1948:
Article 14.
1. Everyone has the right to seek and enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political
crimes or from acts contrary to the purposes and principles of the United Nations.
The United Nations convention relating to the status of refugees of 1951 specified that a
refugee is a person with well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of certain social group or political party/opinion. This fear makes
impossible for those people to get back to their country or receive appropriated protection in
their country. The Spanish legislation adds to this list of reasons for being a refugee the gender
identity or sexual orientation; it also gives subsidiary protection if the asylum requirements are
not fulfilled but the fact of not accepting the asylum application can provoke death penalty or
sever threats for the life or bodily integrity in the context of armed conflict.
PowerPoint:
Refuge: a person with well-founded fear of being persecuted for reasons of:
- Race
- Religion
- Nationality
- Membership social group
- Political opinion

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 Impossible to his/her country or receive appropriate state protection in his/her
country.

Spanish asylum act (law 12/2009) – Refugee: “well founded fear to persecuted on the grounds
of race, religion, nationality, political opinion, belonging to a certain social group, gender or
sexual orientation.” Subsidiary protection: 1) not fulfilment of asylum requirements; 2) in case
of returning home: death penalty or severe threats for the life or bodily integrity in the context
of armed conflict.
Being a victim of gender violence is also a reason to ask for being a refugee. The problem is
that you have to prove this violence heavily to being accepted, and in this type of faults are
very difficult to prove and you also may be required very severe violence to accept it.  
Refugees on the grounds of gender:
 Women at risk of suffering female genital mutilation.
 Women not willing to obey repressive norms, values or social customs, or suffering
severe discrimination because of their sex.
 LGTBI people suffering harassment or severe discrimination.
 Victims of trafficking for sexual exploitation.
 Victims of sexual violence in armed conflicts (sexual slaves, forced prostitution, forced
sterilisation and pregnancies).
 Victims of gender violence.
 Victims of forced family planning.

Social protection system

Article 41 Spanish Constitution: “the public authorities shall maintain a public Social Security
system for all citizens guaranteeing adequate social assistance and benefits in situations of
hardship, especially in case of unemployment. Supplementary assistance and benefits shall be
optional.”
In Spain we have the article 41 CE which is supposed to grant by the public authorities a public
social security system for all the citizen, especially in the hardship situation such as
unemployment. But as we have seen most of these benefits are linked to our working life: the
unemployment benefits, the permanent incapacity rights and the retirement benefits are
linked to have been working for a period of time. If you work for at least 40 years you can have
the complete retirement payment but if you only work for 30 years you don’t. 
These economic benefits are supposed to be neutral and equal for everyone but if you take a
closer look you can see that there also are some inequalities among men and women: in the
retirement pension 63% of men take the pension but only 48% women get it (this is mainly
because women suffer long periods of unemployment due to facts like pregnancy and when
they get a job lots of times is a partial contract with lower contributions).
In our welfare system we have some benefits that can be taken without having participated in
the labour market, called the non-contributory benefits. In this case women are the main
beneficiaries of these benefits, but it doesn’t mean that there is equality in this field: what that
means is that the women don’t fulfil the requirements of the contributory benefits and they
are forced to ask for this non-contributory benefit. Of course, the non-contributory benefits
are much lower than the contributory benefits, and this makes that the social group that is
closer to the poverty are the women who live alone or the widows. 
So, basically, we can find the following contributory benefits:

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  Unemployment benefits
 Benefits for permanent incapacity
 Retirement benefits
 Widowhood and orphan benefits

Contributory benefits (2021)

1) Permanent incapacity  53% women
- Import 83% of the male average
2) Retirement  48% women
- Import 63% of the male average
3) Widowhood  92% women
4) Orphans  47% women

Requirements to become beneficiary of retirement benefits:

 67 years old
 65 years having 38 years of taxes contribution
 Minimum period of contribution – 15 years

Non-contributory benefits
 Disability pension – 52% women beneficiaries
 Retirement – 76% women beneficiaries
 Disease – 85% women beneficiaries
 Old age pension – 89% women beneficiaries

Profile of beneficiary of non-contributory pension

 68,90% are women
 43,14% are married
 43,95% life in homes where there are 2-3 people

TASK: national/citizen/list of items socially protected/neutral or they have a gender impact

Is it necessary to be a citizen or a national? Defend it we have a gender impact.
In Spain we have three ways to get the Spanish nationality:
 The first one is called the ius sanguinis and is contained in the article 17 of the Civil
Code. This way gives you the Spanish citizenship by having Spanish parents, even you
are born in another country you can have this citizenship just by having Spanish
parents.
 The second one is the government decision, contained in the article 21 CC. In this case
is the government who decides that one person must be Spanish for some reason. You

11
 can find this way applied mostly on famous people such as professional athletes,
mainly because if they are Spanish, they can participate in competitions under the
Spanish flag
 The third way is the legal residency, contained in the article 22 CC. This way lets you
get the Spanish citizenship if you stay in Spain for 10 years (this is the general rule,
there are some exceptions where you can get the citizenship after only 2 years).

Once you are 18 years old (if you have double nationality) you will have to choose between the
Spanish nationality or the other one. There are some countries (Latin countries, for example,
where you can still have them both, though).

How to become a citizen in Spain:

 Spanish Citizenship is a right you can obtain that enables you to live indefinitely in
Spain; at the same time that grants you certain benefits, like the right to vote or to
freely move and work within the EU.
 The most common way of becoming a citizen of Spain is by right of birth. Provided that
you have been born in Spain and your parents are Spanish, you directly become a
national of the Spanish territory.
 To be a become a citizen in Spain you’ll be able to obtain it by residency (having lived
enough years in the Spanish country).
 There are other paths to do it: by marriage (by marrying a Spanish national), by
descent (by being a descendant or grandchildren of a Spanish citizen) and by option
(through your children).
 Five benefits that you can enjoy when becoming a Spanish citizen:
1. Easier paperwork
2. Obtaining the right to vote in Spain
3. Free movement
4. Getting the EU passport
5. No Spainexit

 Live legally in Spain for 5 consecutive years. If you are a non-EU citizen who has lived in
Spain for 5 years, you can apply for a long-term residence permit from the EU. This
document allows you to live in Spain indefinitely, while giving you many of the same
rights as Spanish and EU citizens.
List of items socially protected:
 Family (help for parents of children affected by cancer or another serious illness; birth
and childcare benefit, risk during pregnancy and breastfeeding…)
 Health (healthcare, temporary incapacity)
 Incapacity (permanent invalidity, accidents at work and occupational diseases)
 Old-age and survivor (ordinary, partial, and flexible retirement pension, death and
survivor pensions, early retirement pensions)
 Social assistance (care for dependents, minimum income)
 Unemployment (unemployment benefit, unemployment allowance)
 Moving abroad (previous cover in another country)
 Main residence (habitual residence)

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Chapter 3 (6). Family, Gender and the Law
The concept of family
Evolution in the family as an institution: from the pater familias to a cohabitation of people
sharing emotional links and economic resources. The origin of the family law was this figure
with unlimited power of the pater familias who could do whatever he wanted; he also had
some tools to solve all the problems that could arise to the family because nobody else was
able to do anything, not even the inheritor.

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Even though the society has evolved very much and now the things are quite different from
this pater familias idea we don’t have a legal definition. We can define it in several ways to
include all the newest modifications (people who live together, with biological or juridical links,
etc) but we don’t have a sentence in a law from which we can extract the exact definition.
That’s the main reason why nowadays we have made a kind of definition based in the
requirements of what we all can think a family needs and not about what in fact those
relationship or relations are.
Related to that it is very important to say that even today the family is seen as one of the most
private circles within the intimate privacy of the people. And for that reason, there was several
difficulties to act inside the family even if there was being faults among the members of that
family.
As we said we can find legal definition of lots of figures, we can find the obligation to protect
some people over others such as children or disabled people and also the definition of those
especially protected people. But we still don’t have the definition of family, even though we
have several chapters of the Civil Code or Constitution dedicated to fundamental aspects of
the family (marriage, paternity or filiation, support between relatives…).
Thanks to this social evolution we have been having for the last 15 years we can see new
models of families that were impossible to even think about for the past generations.
Nowadays we can see single parent families (only a man or only a women), the same sex
marriages with adaptation (since 2005 people of the same sex can be legally married in Spain)
or stepfamilies (two parents get divorced and one of them enters in a new relationship in
where there are children from the new partner). An example of this new things is the divorce,
that nowadays we see it normal but 15 years ago it was seen as something very punctual and
isolated, because you were supposed to be married all your life.
This keeps leading to lots of questions due to the fact that we don’t have a legal definition of
family which can solve our questions or clarify the relation we can have with the stepfamily,
with the new partner of my father/mother. This is a clear example of how far away the
legislation is from the social concept about family; and also, from the gender point of view it is
very clear that there is an inequality between people because the legislation keeps thinking in
a traditional way of family in where a man gets married with a woman and have children for
themselves biologically. 

Marriage, consent, and divorce

Even we don’t have a definition about family it is very important for us to be able to start
talking about a family to have a union between two people, from opposite sexes or from the
same one; people to keep this union for all their lives or not, etc. But we need a union to start
thinking about it as a family. So, we need a definition about this union that mostly is the
marriage and its consequences. 
Legally speaking the marriage is kind a contract, and as a contract it has several clauses about
the children taking care, the divorces’ consequences, the patrimonial aspects… There are lots
of articles in the Spanish civil code in where you can find regulation related to the marriage
and its contractual aspects such as equality in rights and duties (article 66), respect and
assistance (article 67) and obligations about living together, sharing the housework or
domestic responsibilities (article 68).
In this way the civil code also has three articles which talk about the way a couple can end a
marriage. Nowadays a couple can end a marriage if there is something that can make this
union null in the civil union papers for instance; you can also have a judicial separation, that is
almost a divorce, but you are still legally married, but you don’t have to fulfil those clauses

14
about cohabitation or assistance; and the last one is the divorce, in which you finally break the
marriage and you get out of it.

From a gender point of view this aspect is crucial because whenever you get divorced you
don’t go back to be single; you convert into a divorced person. And the society shouldn’t care
about if you have been married before or if you are judicially separated, but you still have the
obligation to put your civil status publicly even though the only person who should care about
this is yourself. Of course, there are exceptions where it could be useful to have this
information (in taxes for example: if you want to apply for a special tax exception reserved for
divorced people).
In many legal systems we have rules that regulate most of the possible conflicts that may
cause the divorce. Even if the couple arrive to an agreement the Spanish law puts some
obligations for the partners: one of them can’t take care of the children forever even if the
parents decided freely to do it that way, the use of the common house is also regulated in that
way, the possibility of compensatory support in some cases, etc.
The clearest example is the alimony or child support payments. Those children support is
everything considered essential for surviving such as food, housing, clothes, medical
assistance, educations or so on. It is calculated by the judge considering the previous level of
life that the children had. The parents can’t decide a quantity for themselves freely, they have
to wait for the judge decision. We also have the compensatory support which is calculated
considering the family tasks that had each partner of the couple, the decisions taken during
the marriage (one of them left the job, taking care of the children most part of the time…).
Even though the importance of these compensations for the people who get divorced there
wasn’t no legal tool for asking for the money you are supposed to be given. In Spain recently it
has been considered as a crime if the partner doesn’t pay the alimony for 2 consecutive
months or 4 non-consecutive months, having a prison sentence from 3 months to 1 year or
fines from 6 to 24 months. 
Ways to end marriage:
 Art. 73 Spanish Civil Code: null and void  there was not a consent to marry the other
person. I did not give my consent. I was forced to do it against my will.
 Art. 81 Spanish Civil Code: judicial separation  When a couple cannot agree the
terms by which they will live separately.
 Art. 86 Spanish Civil Code: divorce.

Common agreement
- Guardianship and custody of minors: the parents must decide who will
maintain the children.
- Alimony or child support payments: whatever it is essential for surviving (food)
- Use of common house
- Possibility of compensatory support: a judge establishes the quantity and
duration. To be taken into account: family tasks and other decisions taken
during marriage; duration of the marriage: child support, etc.
- Contacts and visits to other relatives
Contested divorce
- Provisional measures

15
Alimony or child support payments
- Definition: whatever it is essential for surviving (food, housing, clothes,
medical assistance, education…)
- Characteristics: irrevocable, non-transferible, unattachable, non-compensable.
Compensatory support
- Conditions: a judge establishes the quantity and duration
- To be taken into account: family tasks and other decisions taken during
marriage; duration of the marriage: child support.
Non-payment of alimony and abandonment of family
- Non-payment for two consecutive months or 4 non-consecutive months
- Prison from 3 months to 1 year and fines from 6 to 24 months
Guardianship and custody assigned to one parent
- Visits regime assigned to the non-custody parent
- Alimony payments
Joint custody
- To be decided by parents
- Possibility to be imposed by the judge in case of disagreement.
Limits to the joint custody Joint custody incompatible with a sentence for
gender violence (case 36/2016 Spanish Supreme
Court).

Civil unions
- Same legal consequences regarding children (when they get divorced or
separated).
- Progressive approximation of widowhood pensions
- Not applicable the compensatory pension
Maternity-paternity leave (equals since 01.01.2021): birth and care of a minor
- 16 weeks at full pay both father and mother (6 weeks immediately after the
birth both of them)
- Remaining 10 weeks: up to mother and father to decide how to enjoy it (limit
12 months of the baby)
 Per weeks
 Possibility to postpone
 Part-time
Risk during natural breastfeeding
- Suspension of labour contract minor 9 months
- Female workers
- 100% salary
Risk during pregnancy
- Suspension of labour contract

16
 - Female workers
- 100% salary
Care of minor with cancer or other severe disease
- Reduction of worktime (minimum 50%)
- Only one of the parents
- 100% salary
- During of hospitalisation and/or treatment of the disease
Nonpaid leaves
- Right to adapt worktime (art. 34.8 ET)
- Reduction of work time to care minor of 12 years or dependent relative, from
1/8 to ½ of work time and proportional reduction of salary (art. 37.4 ET).
- Unpaid leave to care a minor (up to 3 years) or a dependent relative (up to 2
years) (art 46.3 ET).

In 2020, 88,99% of unpaid leave for children care were women.

In 2020, 80,36% of unpaid leave for family care were women.
In 2020, 74, 13% of part-time jobs were women.

2nd TASK:
Identify which is the legal provisions or figure (a man or a women) to take care:
- Children: In Spain, there is no state regulation on the provision of early
childhood education and care (ECEC) at home.

- Maternity/paternity: 16 weeks to the mother and to the father. As long as the

father has correctly paid his social security contributions—for a minimum of
180 working days within the past seven years or 360 total days in his entire
professional life—100% of his salary will be covered.
The first six weeks must be taken immediately and consecutively after the
child’s birth, whereas the other 10 weeks can be taken non-consecutively
during the first 12 months of the baby’s life, which can be extended by one
week per child in the case of a multiple birth.

- Sick people: 1. Due to an accident or serious illness of a family member within

the first degree of consanguinity or affinity, the permit will have a duration of
three business days and five business days when the causal event occurs in a
different location.

2. Accident or serious illness of a relative within the second degree of

consanguinity or affinity, the permit will be two business days and four
business days when it occurs in a different location.

In the event of a very serious illness of a first-degree relative by consanguinity

or affinity, the staff will have the right to two additional days of leave, paid and
non-recoverable.

17
 An exceptional permit may be enjoyed in cases of force majeure or serious
illness or accident of family members up to the second degree of
consanguinity or affinity who live with them and require care that cannot be
provided by another person or institution, provided that in this case, the days
of family sick leave have previously been exhausted. The duration of this
permit will be up to fifteen days.

- Elderly: The worker may request a temporary and voluntary suspension of his
employment contract to care for family members up to the second degree of
consanguinity. This leave of absence is regulated in the third section of article
46 of the Spanish Workers' Statute. Se incluyen los familiares de hasta el
segundo grado de consanguinidad, es decir, padres, cónyuge, suegros, yernos
y nueras, abuelos, hermanos, nietos y cuñados.
- La duración de esta excedencia no puede ser superior a dos años.

Stephanie.burdinski@outlook.de

Chapter 4. Gender violence

The gender violence and the law
Throughout the years we have been seeing different types of legislations and levels of it. In the
beginning, in the 70’s, we had a completely lack of specific legislation or public policies on
gender violence; their argument was that the domestic violence belongs to the private sphere
of the family and non the State, the police or the law has to interfere in that sphere. Later on,
in the 80’s we had the first legal intervention, where we can find the first criminalisation of the

18
domestic violence and the first actions plans against violence against women. And nowadays
we have more specific legislation with more accurate cases and punishments.
So, in conclusion:
 70s – Lack of specific legislation or public policies on gender violence
Domestic violence belongs to the private sphere of the family
Non-interference of the State, the police, and the law

 80s – First legal intervention

Only gender violence within the couple (“domestic violence”)
First criminalization of domestic violence
First actions plants against violence against women
Justice versus public policies (Law versus education)

 2000s – First laws on gender violence

Gender violence, violence against women domestic violence?

Concepts and definitions

There are several examples of definitions about this type of violence from a man to a woman,
and not only examples of definitions but different nomenclatures for this violence. If you look
at the Council of Europe of 2011 you can see in the article 3 they called violence against
women; in the Spanish law 1/2004 they called gender violence, but limited within the couple;
another example is the Catalan law 5/2008 where the article 1 tried to “guarantee the
inalienable right of all women to lead their own lives without any of the forms in which this
violence can manifest itself” and calling this violence as “sexist violence” (violence perpetrated
against women as a manifestation of discrimination).
We can find different forms of sexist violence and different spheres where these forms of
violence can appear. The most common forms of violence and the ones caught in the law were
physical violence, psychological violence, sexual violence, and economic violence; and the
spheres caught in the article 5 of the law ere violence in the familiar sphere, violence in the
workplace (sexual aggression or harassment), violence in the social and community sphere
(trafficking and sexual exploitation of women and children, female genital mutilation, violence
against the sexual and reproductive rights of women…).

Task 3
National legal system: which is the legal term which is used in your countries to address
violence against women.  The term used in my country is gender violence.

That definition under your point of view it corresponds to the Istanbul convention? In the
Spanish legislation, there are multiple articles that define and protect the violence against
women such as the article 15 CE, the Organic Law 1/2004, with comprehensive protection

19
measures against gender violence; and also, the Penal Code, establishing the criminal types:
habitual and unusual mistreatment, coercion, threats, injuries, harassment, insults and minor
humiliations and violation of sentence.
On the other hand, the Istanbul convention has different articles that contribute to that search
of equality. Under my point of view, the definition of the Istanbul convention does correspond.
It protects the principle of non-discrimination, equality, the honour, and the fundamental
rights.

2.CONCEPTS AND DEFINITIONS (SCREENSHOT)

Article 4. forms of sexist violence
Article 5. spheres of sexist violence

Gender violence within the Spanish legislation  article 1. Object of the Law “1. … act against
violence that, as a manifestation of discrimination, the situation of inequality and the power
relations of men over women, is exercised over them by those who……… FINISH
The criminal response as a form of “affirmative action”  STC 59/2008, 14th May 2008 states
its compatibility with the principle of non-discrimination. The different legal treatment is
justified, and it passes the proportionality assessment demanded by the Constitutional Court:
the legitimate aim compensates the potential damages.
The Spanish legislation tried to do a positive action towards the women and modified a little
bit the penal code in order to put heavier punishments to all those faults related to violence
(robbery, injuries, homicide…) in where the perpetrator was a man, and the sufferer was a
woman. This case was taken to the Constitutional Court because some people said it was
vulnerating the non-discrimination principle of the Constitution, but the Court said that the
measure was completely compatible with this principle because it was a positive action, and
just because of that when the substantial equality would be acquired the measure will
disappear.
In order to see how far the measure is needed there have been lots of studies and statistics
about this theme, and we can see from those studies that between 2008 and 2016 there have
been 502 women murdered by their male partners or ex partners, but only 34 men have been
convicted; on the other hand only 67 men were murdered by their partners or ex partners and
only 5 women were convicted. In general, the 90% of the violence exercised within the couple
is from men to women and only a 10% is from women to men.

Spanish law on Gender Violence

In Spain the public policies contained in the Spanish Organic law 1/2004 on comprehensive
protective measures against gender-based violence were separated in three chapters with
different content: chapter 1 in the field of education, chapter 2 in the field of publicity and
mass media and chapter 3 in the field of health.
The most important part is the modification of the criminal code. In Spain the only way to
respond to gender violence has been to increase the penalties already contained by a man
against a woman.
 Modification of art. 153 CP Physical mistreatment
 Article 38. Protection against threats
 Article 39. Protection against coercion

20
  Article 40. Breaking a sentence
 Article 41. Protection against minor humiliation
 Article 42. Prison’s administrations

Special Tribunals: Tribunals on Violence against Women

 Criminal Competence
- Crimes: homicide, abortion, injuries, crimes against freedom, crimes against
moral integrity, against freedom and sexual freedom.
- Criminal responsibility for any crime against the family’s rights and duties
- Restraint orders
 Civil competence
- Filiation, motherhood, and fatherhood
- Null, separation and divorce of a marriage
- Paternal relations
- Guardianship and custody of minors, alimony disputes

Measures of security and protection

 Article 62. Restraint Order
 Article 63. Data protection and limitation of publicity

- Evidence of crime + objective situation of risk

- Civil and criminal interim measures

 Article 64. Measures to leave the house, restraint order, prohibition of communication
 Article 65. Measures to suspend guardianship of minors
 Article 66. Measures to suspend regime of visits, cohabitation, relationship, and
communications with minors
 Article 67. Measures to suspend the gun licence

Real facts in accessing the criminal justice in cases of gender violence

Obstacles for the women’s claims
 Normalization of gender violence
 Feelings of embarrassment, guilt, and emotional block
 Children’s protection
 Lack of trust of the criminal system of justice
 Economic dependence: still women earn less salary tan men. That creates a situation
of economic disadvantage.
 Contradictory messages from the family/social circle/law

Gender violence perceived by professionals (judges, public prosecutors, lawyers, police, and
specialised teams……)

Chapter 5. Sexual violence and the law

Prevalence of sexual violence:
- 11% of European women
- 6% of Spanish women

21
We have a very limited definition of what sexual violence is: excluding laws + restrictive
interpretations + gender stereotypes + myths around sexual aggressions + dominant belief
about female and male sexualities.
The Spanish case can be used as a general example about the historical way of the criminal
codes when it is about dealing with sexual violence. Nowadays the criminal codes are divided
in chapters, within the same chapter deals with a certain legal good (physical integrity, life of
people…). In the criminal code of 1848, the sexual violence was put in the chapter of the
“crimes against honesty” and not in any chapter related to physical integrity or anything else.
They needed to prove that there was some type of physical opposition from the victim and,
the most important thing, that there was some honesty to be protected: only virgin women
could be victim of this fault, women who had sexual relation without being married like
prostitutes didn’t have access to this criminal code protection (if a man rapped a prostitute, he
could get a decrease of the sentence).
In the Spanish criminal code of 1995, with a little reform on sexual abuses in the 2003, there
are some articles related to the sexual crimes: 178 (sexual aggression), 179 (rape), 180
(aggravating circumstances), 181 (sexual abuse), 182 (sexual abuse to a minor between 16-18
years old), 183 (sexual abuse to minor below 16 years old), 183 bis (incitement to sexual
behaviour), 183 ter (cyberstalking), 183 quarter (free consent of a minor to another minor).

TASK:
In which circumstances you are afraid in your normal day: when I’m coming home late at
night.
What you do to prevent that fear: I try to go with my friends (sometimes I ask them if they can
go with me to my house).

Stereotypes, myths and beliefs about sexual aggressions and the ideal victim
Normally we use to think that the consequences on the victim’s behaviour is to reflect a more
visible emotional impact within a short period of time after the rape, but we can also see that
different victims have less social and judicial credibility. There is always that recurrent thought
about that women are always lying about a rape or a sexual crime, even though the statistics
demonstrate the opposite; you can also find the myth about the justification for the committer
if it is a man (the myth says that the man has more sexual appetite and need to have sexual
relations). The statistic also shows that the most common attack is between two people who
are known between each other and in a private space, not from an anonymous person in a
public space as the majority thinks; it may be also a lack of injuries such as bruises due to
resistance.
Most of the times the perpetrator and the victim don’t fulfil the characteristics that those
stereotypes or myths have created, and when that happens the popular opinion is more
probably to not believe the victim because we expect certain things that maybe don’t happen.
There was a case in Stanford where a boy raped a girl, and he wasn’t condemned in anyway
because he had greats expectation of having a professional career in athletics and also in the
university and condemning him would have ruined his life like he did with the girl.
There are lots of other myths apart from the ones related to the characteristics of the
perpetrator or the victim. Myths of unbelief like the one that says that women are normally
liars and bad people, myths of victim’s guilt-exemption like the one that says that men need

22
more sex, and their sexual desire is uncontrolled at a certain point while the women sexual
desire is more controlled and calmed.

The stereotype of the “real rape”

Myth of the real rape built by:
- Crime definitions
- Judicial interpretations
- Collective imagination
- Mass media
Unexpected attack by a stranger within a public space + violence and/or threats +
active resistance of the victims leaving physical injuries
Most common attack: someone known + private space + lack of injuries due to
resistance
Consequences on the victim’s behaviour: claim within a short period of time + visible
emotional impact visible vs. different victims with less social and judicial credibility.

The myth of the rape

 Descriptive or prescriptive beliefs on sexual aggressions (myths of unbelief,
myths of victim’s guilt, myths of exemption or justification, myths of different
kinds of women).
 Myths of unbelief
 Myths of victim’s guilt-exemption or justification
 Gender stereotypes: liars and bad women
 Gender stereotypes on male and female sexuality
The ideal victim
The common belief about an ideal victim of a sexual attack is a girl who has taken no alcohol or
drugs and also that hasn’t had previous sexual relations with the perpetrator. She has to claim
the attack in a short period of time after the attack and with an affected attitude (most of the
time the victim lasts a lot of time until she is prepared to claim the attack) and must maintain a
coherent behaviour according to the social demands before and during the assault (if she was
flirting with the perpetrator before the attack it is seen not as an attack or not as heavy as it
would have been seen). She also has to has de ability to transmit the experience in legal terms,
not only in normal terms and words.

The “fake” claims

Normally the judges are very cautious when believing the victim’s declaration because there is
the concern about the fact that women usually attend other reasons than sexual violence to
put the claim (even though it has been proven that it isn’t like that): revenge or hostility to the

23
man, jealousy towards a new partnership… They need to check the victim’s declaration with
external and objective elements to consider it as a valid declaration (testimonies, hours, etc).

Real assaults
 The assaults that leave physical marks”
 The assaults that leave “traumas”
 The assaults that are immediately alleged

The ideal victims

An ideal victim it is seen as a respectable woman with honour and respectability, they must
run away and ask for help to avoid the attack and not being submissive with the perpetrator.
They are also seen as passive and easy-going women because a woman who denies having sex
with men is not that easy to be convinced. After the attack an ideal victim don’t exaggerate
and tell the story how it is or even saying it was less than what she said firstly and also she
hasn’t to look for economic compensation, just an apology from the perpetrator or prison
punishment so far. 
 

Chapter 7. Sexuality and law

24
In all the countries and legal systems there is an obligation to assign every citizen a sex: male
or female. Nowadays we can see more normally that there are people who doesn’t feel as a
male or a female, they are neutral sex or other denominations (non-binary, gender fluid, etc).
Even though this, the Spanish medicine system continues assigning a sex to the new-born but
in the 2007 the Spanish courts promoted a law with a regulation about the rectification of the
sex of the people. This law grants adult Spanish citizens the right to change a person’s legal
name and sex in all their legal documents. Of course, the person who wants to change their
sex must fulfil some requirements such as being a Spanish citizen, choosing an unambiguous
new name, being diagnosed with dysphoria and to have undergone two years of “medical
treatment” (such as hormone treatment). All those requirements are found in the article 4 of
the Spanish law 3/2007 of 15th march.
This sex change doesn’t only affect to the documents, its most important part is the surgery
the people have to undergo for changing their biological sex from one to another. In the
Spanish case this surgery is covered by the health coverage system, but it depends a lot on the
autonomous community you are living in. Despite this fact there is nowadays there is a strong
anti-pathologization movement which tries to eliminate the requirement of being diagnosed of
dysphoria for being able to have access to the surgery. There is a limit put in the law which is
the age of the patient: the minors are not able to have access to this process, even there are
lots of cases of it.

Same sex marriages

For introducing the same sex marriage in the Spanish civil code we had a reformation of it in
the 2005. This reformation was about modifying the article 44 in where it put wife/husband
but now it says “spouses”. With this brief change we can keep the term “marriage”, including
in this term for both options (heterosexual and homosexual marriage) all the benefits the
marriage had: adoption, inheritance, tax, nationality, residence, divorce, housing, etc.
There are countries in where the homosexual marriage is prohibited and even considered a
crime to be homosexual.

Prostitution
There are three main terms referring to prostitution: prostitution, sexual work and trafficking
in human being for sexual exploitation. Depending on multiple factors the activity a person is
doing can be considered as one or another term, such as the negotiation and exercise of paid
sexual services, if there are third parties involved in the service, if the person who does the act
is available in a “market” and if the price is established according to the offer-demand or some
kind of regulation.
Through the different legal systems we can find different positions towards the prostitution,
depending on how the legal structure treats the main sexual act and all the things that
involves. 

Activity where someone sells sexual services to another person. It is the term sexual work
because it is legal and recognized as another type of work. In those countries where sexual
work is used is most of the times a way to distinguish from prostitution.

25
Prostituting: de person is forced to do it.
Sexual work: implies another type of activity freely chosen.
Most of the time, prostitution implies this 4 items:
1. Negotiation and exercise of paid sexual services
2. With or without a third party
3. Available in a “market”
4. Price is established according to the offer-demand

 Classical abolitionism
1. Abandons the regulator model (Sanitary control, geographical limitation, specific
places)
2. Prostitution conditions get worse.
3. Ideal of the woman: moral supremacy of the housewife and chastity.
4. Prostitution linked to trafficking in human beings.
 Radical abolitionism
It is related with the second wave of the feminism that comes from the 60’s. Prostitute is
considered as one of the most severe forms of violence against women reaching the level of
considering it slavery, mainly because a prostitute can’t decide about her own body and
freedom. One of the main arguments of the radical abolitionism is that sex is an example of
commodification of the women’s body, with the capitalism even a body or the sex can be sold
and bought, and the law should ban these behaviours.
1. Second wave feminism. Prostitution as one of the most severe forms of violence
against women.
2. Prostitution as a form of slavery.
3. Sex as an example of commodification of the women’s bodies.
 Criminalisation of the client
This approach tries to abolish the prostitution but from another point of view. Typical from the
northern countries, they put the guilty in the client and criminalises that person who consumes
prostitution. In this legal approach the prostitutes are the victims, and the law can’t criminalize
the victim. The main problem with this model, also related with the radical feminism, is that
the prostitution doesn’t disappears because the clients move to other countries where the
prostitution is permitted in some way.
1. Swedish model. Relations with the radical feminism.
2. The prostitutes are the victims.
3. Possible limits: prostitution does not disappear, it moves to other countries and
negotiating conditions get worse for the women.
 Mixed abolitionism
This approach is the one who is reflected from the CEDAW, a convention in where we can find
lots of measures to eradicate all forms of trafficking, but without saying that the prostitution is
a kind of trafficking.
1. For many as reflected in the CEDAW.
2. Art. 6 Measures to eradicate all forms of trafficking.
 Pro rights model

26
This model can be found in the countries where the prostitution is legalised and give a concept
of sexual work (agreed interchanged of sex by money). They have given differences between
trafficking in human beings for sexual exploitation and prostitution, putting under question the
stigma of prostitution and the stereotypes of good-bad woman.
1. Concept of sexual work: agreed interchanged of sex by money.
2. Differences between trafficking in human beings for sexual exploitation and
prostitution.
3. Put under question the stigma of prostitution and the stereotypes of good-bad
woman.
4. Claim about the affective and sexual tasks.

EU case law on prostitution

Case C-268/99, 20th November 2001, European Court of Justice
Case Jany and other vs. Government of Netherlands, where prostitution can be considered an
economic activity.
It is recognised a type of work to get a residence permit because it constitutes a way of living.

27
Chapter 6. Examples of gender violence: forced marriages and sexual
harassment
A forced marriage is where one or both spouses do not consent to the marriage as they are
pressurised, or abuse is used to force them to do so; the pressure can be physical or
psychological. In our legal systems this is prohibited and criminalised.
In another hand we can find the arranged marriage, where the election of the spouses has
been done by someone else, normally someone from the family or the community; finally both
spouses consent to marry. This kind of marriage is permitted in our legal system because in the
end the spouses give consent.
We can also find fraudulent marriage when the marriage takes place for a non-explicit
purpose: economic interests, legalisation of residence of one of the spouses, etc. In this case
both spouses agree to get married but not for the purpose they say. 

Diagnosis of the problem of forced marriage

 FM as a migration problem
 FM as a cultural problem
 FM as a religious problem
 FM as a form of violence against women

Statistic and prevalence

Until we have some numbers the prevalence of this form of violence against women it is very
difficult to have countries fighting against it. But it is also very difficult to have those statistics,
even though it is much more common that we have. The countries with most of the cases are
located in the Sub-Saharan African countries, the North African countries, the Middle East, Asia
or Latin America countries. In countries from Europe there are also cases of if, for example the
UK face 1200-1400 forced marriages per year but only 130 of those forced marriages receive a
special protection order they have for those cases. But the UK is not the best example because
it has lots of relation and migration connections with the countries with the vast majority of
cases, and quite a lot of the people who take or suffer these forced marriages go away from
their original countries to have it in another country.
To have a more accurate idea from the quantity of forced marriages that take place in
European countries we can take a look at Germany where 3443 people went to counselling
centres to claim they suffered a forced marriage (but only 56 cases of the matter arrived to a
court); another example is Switzerland, which calculated that more or less 17000 cases of
forced marriage took place in the year the study were done (2006).

Legal framework in Forced Marriage

If we take a look to all the legal tools we have to fight the forced marriage we can find legal
framework from international conventions or congress, regulations from supranational

28
organisations such as the EU and national guidelines and legal instruments. The 4 legal tools
we can find are the Convention on the Elimination of Discrimination Against Women (CEDAW),
the Protocol to Prevent, Suppress and Punish Trafficking in Person Especially Women and
Children (Palermo Protocol), the European Convention on Human Rights and the Council of
Europe Convention on preventing and combating violence against women and domestic
violence (Istanbul Convention).
If we focus in the European legal framework we have the European Charter on Human Rights
and two European directives that are intended to fight in that direction: the EU Directive
2011/36 on preventing and combating trafficking in human beings and protecting its victims
and the EU Directive 2012/29 establishing minimum standards on the rights, support and
protection of victims of crime.

Measures to prevent or eradicate FM in Europe

In countries like Norway and UK they have action plans to combat FM that go from legislation
and preventive measures to supporting the victims, researching and doing community work.
Countries like German have special police units focused on forced marriage.
Here in Spain we have legislation (most of it is a reflect from the European directives or from
the international regulation) but we also have public policies. These public policies are
recommendations or suggestions that the State give to the people with the aim of reaching a
certain level of something or the eradication of another thing, but they don’t have binding
force so the only effect they can have is to make the people think about it and put it practise
by themselves. 
There are several countries where they have included in their criminal codes a specific crime
called “Forced Marriage” like Austria, Belgium, Croatia, Denmark, etc. But the are other
countries where we can’t find a specific crime, but they have related the forced marriage with
pre-existing crimes they had in their criminal codes (rape, physical or psychological violence,
illegal detention, coercion, honour crimes, etc.).

Spanish legal framework

In the Civil Code we find an article that says the minimum age to get married is 18 (or 16 with
the parents’ approval) and if you don’t fulfil this requisite you can claim your marriage as null
in a timeline of 1 year. The problem is that most of the people don’t know this option, and if
you live with your husband or wife for more than a year this null marriage converts into a valid
one.
In the Criminal Code we can find an article from the reform it suffered in 2015 where the
forced marriage is classified as a form of trafficking in human beings and also an aggravated
form of coercion. 

Origins of the legal category “Sexual Harassment”

In the 70’s at Cornell University took place some feminist meeting, in where the people
assisting thought about a phenomenon that most of them suffered in the labour market but
that nobody had given a name to it. But not only happened in the labour field but also in other
fields of their lives. Legally speaking the sexual harassment is only limited to the labour market
even the people can find much more examples where a woman can suffer sexual harassment.
In most of the European legal instruments with binding effects the sexual harassment didn’t
appear until the 80’s or even the late 90’s; it appeared most of the times as a public policy or a

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recommendation from the State but nothing further. The common law countries introduced
this term before, more or less in the late 70’s, mostly because people like Catherine
MacKinnon (a teacher at university who claimed for the women rights in that way).

Controversial aspects of the legal definition of sexual harassment

 Sexual harassment can be an isolated incident? All the sexual harassments are
isolated incidents but only one situation is enough to say that a person suffered from
it, and we have to consider the continuity that takes place whenever those “isolated
incidents” keep taking place one after another
 Sexual harassment against men? It is obvious that these cases are much more
uncommon than a case of sexual harassment happening to a woman, but it also exists
so it may be pursued by the law as well
 Individual behaviour? Every time a sexual harassment happens it affect all the women
in society because most of the times nothing happens with the perpetrator, and the
effect of it is that the men tend to think they can do it freely, and not only in the labour
market but in all the fields they want. Nevertheless the legal systems have never
thought about sexual harassment as a collective harm or problem but only as a conflict
between two individuals
There are also some problems with the different legal systems referred to sexual harassment,
because depending on what system you look at there are little differences that can be very
important. For example, the Anglo-Saxon law with its common law system classify the sexual
harassment as a labour discrimination while the European law consider it as a violation of the
human dignity, and furthermore if you look at the international law it is considered as a
systematic violence. Basically it affects in the consideration the people have of the sexual
harassment and how they react to a case of sexual harassment (if the legal system only
considers it a problem in the labour market the society may not consider it very important, but
if it a violation of human dignity it may be more in mind of people). The first consideration
(sexual harassment as a labour discrimination) is disappearing little by little and it’s getting
changed by the European or international point of view.

Myths
There are several myths that make very difficult to apply the legal instruments we have to fight
against gender violence, and most of them are the same the women suffer in all the sexual
crimes:
 Decent women don’t suffer sexual harassment, only certain women with concrete
characteristics can be harassed
 Fake claims, in where women invent that a man tried to harass them to achieve certain
things
 “She would like to be harassed…”
 Harassed women deserved it
 These women don’t have sense of humour, it is just a compliment, a joke, they are
hysterical…

Realities
Most of the harassed women don’t put a claim because they are afraid of being double
victims. They just want to stop it, but they know that starting a trial against the perpetrator will
only make the problem to lasts more time without getting any proper solution or
compensation, mainly because that the fact of being harassed can’t be compensated. Even
though the victims that had put a claim said that the only thing they were looking for was to be

30
heard and believed, not being criticized and incriminated with one of the existing myths about
the harassment.

Chapter 6. Sexuality and Gender (8)

Definition of sexual and reproductive rights: article 96 Beijing Platform for Action
What is protected: the women’s health of their freedom and dignity.
Evolution of the legal treatment:
5. Convention for the Elimination of all Forms of Discrimination against Women (CEDAW,
1981).
6. The United Nations International Conference on Population and Development (ICPD).
What is protected at ultimate end? Are we protecting the women’s health? Or are we
protecting women’s freedom (about her body and self-determination)? Or maybe, human
dignity?
United Nations:
 International Covenant on Economic, Social and Cultural Rights (1976)
 Convention for the Elimination of all Forms of Discrimination against Women (CEDAW,
1981)
 Action Platform on Population and Development (ICPD, Cairo, 1994)
 Beijing Platform for Action (1995)
European Union:
 Subsidiary intervention on the field of public health.
 Legal diversity among the Member States on the field of abortion and access to birth
control devices.
Most of our countries the debate on abortion takes place about collision between the freedom
of the women and the life of the foetus. Whenever there is a discussion if abortion should be
legal or not, we find these two postures. The countries that are familiar win common law
normally the debate is about intimacy of the women.
It is key in order to get a solution to know when human life starts.
Individual liberal version:
 Non-state interference
 Minimum intervention of the law
Critical constructivist version:
 State intervention as a condition to secure equal opportunities
 Law as another social tool
Sexual and reproductive rights in Spain

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 - Article 14  general mandate of non-discrimination – Spanish constitution
(1978)
- Sexual and reproductive education in the compulsory education CV
- Article 15  right to physical and moral integrity – Spanish Constitution
- Right to conscientious objection sexual and reproductive rights
- Article 16  freedom of religion
- Organic Law 7/1980, of 5 July, on Freedom of Religion

- Sexual and reproductive education in the compulsory educational CV

The case of abstinence as an education policy in the States, 1981 until now
- Organic Law 2/2010 on sexual and reproductive health and the voluntary
interruption of pregnancy (article 1)
 Guarantee the fundamental right on the field of sexual and
reproductive health.
 Regulate the voluntary interruption of pregnancy.

Abortion
Which are the interests/rights in conflict?
 Woman’s right to bodily integrity
 Woman’s freedom
 Nasciturus protection as a human life project
 The foetus right to life (foetus is the medical term of nasciturus).
Key issues of the debate
 Lack of consensus when human life begins
 Is the nasciturus entitled to a right to life?
 Should the State interfere and legislate on issues related to human
reproduction?

TASK: Identify 3 aspects in terms of abortion (rights, values, or interests). In which cases is
abortion permitted?
Rights, values, or interests protected in terms of abortion:
 Woman’s right to bodily integrity
 Woman’s freedom
 After the first 14 weeks there are some norms to be able to abort
because the life of the unborn child is a legal right constitutionally
protected by article 15 of the constitution and his or her right to life.

- In the first 14 weeks: the decision is free, as long as the pregnant woman is
informed about the rights, benefits and public aid to support maternity. It is

32
 necessary to wait for at least 3 days after the delivery of the documentation to
proceed with the interruption by the chosen method.
- Between 14 and 22 weeks: abortion is allowed after a medical diagnosis that
justifies it, such as malformations in the foetus or serious illness of the
pregnant woman. This diagnosis must be confirmed by two independent
specialists.
- After 22 weeks: termination of pregnancy is only possible in the following
cases:
Fetal anomalies incompatible with life, with an opinion issued by a specialist
other than the one who will perform the termination procedure.
Detection of extremely serious and incurable fetal disease at the time of
diagnosis, confirmed by a medical committee.
Spanish legislation on abortion:
- Organic Law 9/1985, of decriminalisation of abortion in certain cases.
- Spanish Criminal Code (1995) articles 144 – 146.

Organic Law 2/2010 on sexual and reproductive health and the voluntary interruption of
pregnancy.
- Action of unconstitutionality against (submitted the 1 st June 2010).

(As previously said):

Art. 14 Interruption of pregnancy upon the woman’s request (0-14 weeks)

2 requisites:
1. Information given to the pregnant woman on her rights, and public benefits to support
motherhood.
2. A period of at least 3 days between the information and the interruption of the
pregnancy.

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Chapter 8. Gender, reproduction and the law
In the Spanish constitution we have the article 14 about the general mandate of non-
discrimination, and in there we find the base for saying we have those reproduction rights. But
furthermore we have some policies developing that mandate, mainly making mandatory to
have sexual and reproductive education in the compulsory educational CV (nowadays the
sexual education is more focused in family planning rather than in explanations about sexual
orientation or gender issues). Other people say that the article that make possible to claim
those rights is the article 15 about physical and moral integrity.
It is important to mention the right everyone have to conscientious objection in the sexual and
reproduction field. This right, which is mainly reflected in abortion cases, makes possible to not
obey the law arguing that obeying the law would cause a terrible damage to my mind and
moral integrity. 
In the 1981 the government of the United Stated made a very restrictive understanding about
the sexual and reproductive rights, and for not going against the freedom of religion of the
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children or the parents they thought that the only thing that could be explained in school were
the benefits of waiting until the marriage to have sexual relations. An example of the effect
those policies had are the chastity rings that the actors or actress wore in the teenagers films
or how in those films the maximum thing about sexual relations we can see is a kiss after all
the love story. Another side effect about not giving sexual education was that the people
didn’t have information and the Sexually Transmitted Illnesses increased, because people
didn’t wait until the marriage. 
From 2010 to now there has been a change in the legislation: before that year the laws talked
about sexual and reproductive rights, but nowadays we have changed it for “sexual and
reproductive health”. It is a very important change because without the word “rights” the
protection we have in front of legal violations is much lower.

Abortion
Depending on the legal system we have (common law or civil law) the rights in conflict or the
key words in all the debate vary a little bit: in the common law countries they focus more on
the woman’s right to body integrity or freedom, while in the civil law countries focus more in
the nasciturus protection as a human life project.
And that second debate introduces another very important debate related to it: when can we
consider that a nasciturus is a full human being? Because whenever it is considered a human
being we must guarantee its fundamental rights like the right to life, making impossible to
abort in any case; but if we consider it not a human being or not until a certain point we can
guarantee the right to abortion. Another important question is if the state should interfere and
legislate on issues related to human reproduction, because is an issue directly related to the
most intimate and private sphere of the people.
In the Spanish case the applicable law in abortion and reproductive issues is the organic law
2/2010, talking about sexual and reproductive health (with the problems that “health” brings)
and the voluntary interruption of pregnancy. The 1 of June of that year an action of
st

unconstitutionality against the law was presented but nowadays we don’t have yet a
pronunciation from the constitutional court about it. There are some aspects that are under
revision because they are very controversial, such as the fact that the cases of legal abortion
must be covered by the social healthcare system and the fact that giving sexual education in
the schools can go against the freedom of religion and the freedom of the parents to educate
their children however they want.
Dealing with those legal abortion cases the article 14 from the organic law stablishes 3
requisites for being completely legal:
 The first requisite is that the process of abortion is started within the first 14 weeks of
th

pregnancy. If the pregnancy is in the 15 week or more the woman can’t attempt to
th

abort
 The second requisite that the law asks for is that the woman must have been fully
informed about her rights and the public benefits that she might has to support
motherhood instead of aborting
 The third requisite is that the mother will have to spend a period of at least 3 days
between the information the mother has to be given and the interruption of the
pregnancy. This period is made to let the mother think about the abortion and the
consequences of it (but in the practice it is very useless because the women that come
to this process is because they have thought about)

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