Analysis of Law 38 on Domestic Violence

By: Mariblanca Staff Wilson

msw@sinfo.net

1. Brief introduction.

On July 23, 2001, Official Gazette 24,350 was published in which Law 38 of
July 10, 2001 appears, which adds and reforms some articles of the Penal and
Judicial Code and repeals articles of Law 27 on domestic violence.

Because it is a legal instrument that expands concepts and establishes new

norms related to the violence that occurs within the family, it needs to be
widely disseminated, therefore as a legal professional who must fulfill the role
of collaborating with the administration of justice, below I will carry out an
analysis of said law, previously outlining some concepts about domestic
violence, about the crimes that constitute this conduct, law 27 of 1995 on
domestic violence and finally, the analysis related to law 38 on domestic
violence.

2. Domestic Violence. Concept.

Violence is an act in which force is used and power is manifested. Domestic

violence, also called "intrafamily", is a practice or exercise of both force and
power that occurs between members of the same family, in which one person
is the one who exercises force or attacks, and another or other people are the
ones who are attacked. Since these events occur within the family, that is why
it is said to be intrafamily or domestic violence.

And what is meant by family? The family is the people who have a kinship
relationship, whether through blood ties, adoption or affinity. The family is
formed through consensual union or through marriage.

Domestic violence, also called "domestic violence" refers to "the different

abusive forms that permanently or cyclically characterize family
relationships; either by an action or conduct directed towards one or several
family members, which causes death, physical, sexual, mental harm or
suffering or any type of harm . "

Domestic violence is understood in different ways, hence there are different

concepts that in one way or another bring together the common idea of what
this type of violence means. There are those who point out that it is the act
committed within the family by one of its members that harms the life, body,
psychological integrity or freedom of another of its members and that the
majority are women, children, the elderly, its main victims.

As Dr. Enriqueta Davis points out, the effects of domestic violence translate
into disintegrated families of women, boys, girls, adolescents, elderly men and
women, and also men with emotional imbalances and a proliferation of
sociopathies - drug and alcohol consumption. , violent acts, damage to third
parties and themselves - which entail high costs for society as a whole. (Davis,
1998)

Another definition of violence says that "it is the open, naked and unleashed
manifestation of aggression, understanding aggression as attacking behavior,
the purpose of which is harm to the person at whom it is directed. This
attacking behavior involves an interpersonal reference and physical and/or
psychological behaviors that reduce the other person to the status of an
object, which is offended, denigrated, causing its destruction and
dehumanization .

Panamanian legislation in Law 27 of June 16, 1995 speaks about domestic

violence and although it does not contain a broad definition, it does typify the
behavior of physical or psychological aggression of a member of a family
towards another of its members.

On the other hand, the recent Law 38 of July 10, 2001, which reforms and
adds articles to the Penal and Judicial Code on domestic violence and repeals
articles of Law 27 of 1995, replaces the term domestic violence with
"domestic violence" and contains a definition of terms, including domestic
violence, which in article 2, paragraph 8 defines as: "Pattern of conduct in
which physical force or sexual or psychological violence, intimidation or
persecution is used against a person." by your spouse, ex-spouse, family
members or relatives with whom you cohabit or have cohabited, live or have
lived under the same roof or maintain or have maintained a legally
recognized relationship, or with whom you maintain a consensual
relationship, or with a person with whom at least one son or daughter has
been procreated, to cause physical harm to his or her person or to the person
of another to cause emotional harm . "

Domestic violence is a form of discrimination, abuse of power and, above all,

a violation of human rights. It has become an everyday, "natural" fact, almost
unnoticed, because we are already so desensitized that we need a considerable
escalation of violence or acts of brutality, especially dramatic, to overcome
our indifference.

It is regrettable to recognize that domestic violence is a distressing reality

worldwide. This is evidenced, for example, by the fact that in Latin America
alone, in 75% of marital violence, the victims are women; In 23% there is
mutual aggression and only 2% of men are victims of violence. In Panama, it
constitutes a social problem that worsens every day and although there are no
real statistics, it is enough to mention that from January to December 2000, 30
women were murdered by husbands or partners who claimed to love them;
while 28.8% of the crimes investigated in the prosecutor's offices of Panama
City correspond to domestic violence and more than 1,500 complaints of
violence against women were processed in the Judicial Technical Police.

3. Crimes of Intrafamily or Domestic Violence.

Before addressing the crimes of domestic or family violence contemplated by

Panamanian legislation, it is necessary to first briefly refer to the legislative
background at the international and national levels. In this sense, it is worth
noting that with the approval in 1994 by the Member States of the
Organization of American States, of the Inter-American Convention to
Prevent, Punish and Eradicate Violence against Women (Convention of
Belem Do Para), it was was able to count on an international legal framework
against domestic violence and the action that prompted the countries of the
Latin American region to approve national laws against domestic violence and
violence against women, to such an extent that in December 1997, the
Assembly General of the United Nations approved Resolution NO. 52/86
adopting the Model Strategies and Practical Measures for the Elimination
of Violence against Women in the field of Crime Prevention and Criminal
Justice , which urges Member States to implement strategies, formulate policy
and disseminate information to promote women's safety at home and in
society at large, including specific crime prevention strategies that reflect the
reality of women's lives and address their special needs in areas such as
development social, environmental management and preventive educational
programs; recognizing the need to establish a policy that gives a predominant
role to the gender equality perspective in all policies and programs related to
violence against women, aimed at achieving gender equality and fair and
equitable access to Justice.

3.1. Law of 27 of 1995 on Domestic Violence and its reforms.

With the approval of the Belem Do Pará Convention in 1994, Panama was one
of the first countries in the region to ratify said convention through Law No.
12 of April 20, 1995, which served as the impetus for the issuance by the
Legislative Assembly of Law No. 27 of June 16, 1995, which classifies the
Crimes of Domestic Violence and Child Abuse, orders the establishment of
specialized units to care for the victims of these crimes, reforms and adds
articles to the Penal Code and Judicial and other measures are adopted .
This Law recognized for the first time in our country that domestic violence
and abuse between family members is not a natural act, but is a crime that
must be punished.

With Law 27 of 1995, Chapter V called "INTRAFAMILY VIOLENCE AND

MINOR ABUSE" was added to Title V of the Penal Code, comprising articles
209, 215 A, 215B, 215C and 215D, which establishes the crimes of domestic
violence and child abuse.

Said law 27 established the following types of violence and abuse:

1. Sexual violence : which includes the use of force and power with the
purpose of carrying out sexual acts against the will of the other person. This
type of violence occurs in relationships; Others occur between an adult and a
boy or girl or a young person under age, through abuse and deception or with
the use of force. The most common acts of sexual violence are: sexual
intercourse with the use of force, that is, rape; commercial sexual exploitation,
that is, achieving economic gains by charging for the sexual relationship of
other people; having sexual relations with family members, that is, what is
known as incest.

2. Physical violence : it is that in which force and power is used, causing

bodily harm or injury to the person who receives it, generally requires medical
attention and suffers incapacity to function normally for a period of time.
Among the events that can be mentioned are: wounds, cuts, fractures and
broken bones, slaps and punches, kicks, burns, among others.

3. Psychological violence : it is violence that, although not seen with the

naked eye, does produce emotional and mental effects, affecting the victim's
self-esteem. Among the acts that are considered this type of violence are:
verbal insults, shouting, ridiculing or rejecting the other person; destroy
objects owned by the person; damage or break household objects, cause harm
to animals, etc.

In the three previous types, the law establishes three possibilities: penalty of 6
months to 1 year in prison and increased from 2 to 4 years if the aggravating
circumstances of article 215B of the Penal Code are incurred, or with a
curative security measure or with both. sanctions.

4. The crime of child abuse : it includes all acts of force and power that are
carried out against minor girls and boys who have not reached the age of
majority.

The events that are considered child abuse according to the law are:
1.Causing or allowing or causing physical, mental or emotional harm to be
caused, including physical injuries caused by corporal punishment.

2.Use or suggest that they be used in order to earn money at their expense,
making them ask for money (begging), pose for pornographic photographs,
act in pornographic films or in propaganda or advertising not appropriate for
their age.

3. Employ them in work that is prohibited or contrary to morality or that

endangers their life or health.

4. Denying them the conditions they need for their life and development as a
person (negligent treatment) and giving them mistreatment that may affect
their physical or mental health.

This crime is punishable by a prison sentence of 1 to 6 years.

5. Incest : is what occurs when a person, knowing of the existence of a family

bond, has sexual relations with them. It is understood that the crime occurs
when the person puts his sexual organ, his fingers, his tongue or any object
such as pencils, pens, bottles, markers or any object into the natural orifices of
the other person's body (the anus, the mouth , vaginal orifice). This crime was
punishable by a prison sentence of 3 to 5 years and if the aggravating
circumstances indicated in article 216 are incurred, the sentence is increased
from 3 to 10 years.

Without a doubt, Law 27 of 1995 represented a great advance to prevent,

punish and eradicate domestic violence, however, after 5 years of being in
force, it was found that it was necessary to reform it in order to expand the
scope of application of the law to other people within the family who were
excluded; the inclusion of preventive and security measures specific to cases
of domestic violence; impose more severe penalties and make the law more
effective in practice. Thus, Law 38 of July 10, 2001 was issued, which adds
and reforms some articles of the Penal and Judicial Code and repeals articles
of Law 27 on domestic violence.

Among the most important modifications is the change in the name of Chapter
V of the Penal Code, which now reads: "Domestic Violence and Abuse of
Children and Adolescents."

Another important modification is that Law 38 mentioned above contemplates

in its Chapter I, Objective, Definitions and Scope. Thus, Article 1 of said Law
establishes that its objective is for the law to protect children and adolescents,
as well as the people referred to in the article, from the various manifestations
of domestic violence and abuse. 3, in accordance with the principles of the
Constitution, the Family Code and the international treaties and conventions
ratified by Panama.

Article 2 of the aforementioned Law 38 contains a definition of various terms

related to domestic violence, which serve to have greater clarity of concepts
on the matter, which is undoubtedly very important because it fills a void that
Law 27 contained. of 1995.

For its part, article 3 of the law establishes the situations or links to which the
measures and precepts contained in Law 38 are applicable, expanding the
scope of application of the previous law that left out, for example, unions of
extramarital relationships have already been made, which is an important
modification. Thus, the crimes of domestic violence and abuse of children and
adolescents under 18 years of age are applicable to:

1. Marriages

2. De facto unions.

3. Relationships that have not reached 5 years, whose intention to remain can
be proven.

4. Relationship by consanguinity, affinity or adoption.

5. Unusual minor sons and daughters who may or may not live within the
family.

6. People who have procreated a son or daughter between themselves.

An important aspect of this article is that the law will apply even in the event
that relationships or cohabitation have ended at the time of the attack.

Analysis of Law 38 on Domestic Violence

Another important modification of Law 38 is that Chapter II establishes in

article 4, fourteen (14) protection measures that the competent authority can
adopt, in favor of the person or persons who are victims of domestic violence,
which is a significant progress since these measures were not contemplated in
Law 27.

Among these protective measures we can mention, among others, the

provisional arrest of the aggressor for a period of no more than 24 hours; the
eviction of the home by the alleged aggressor, regardless of who owns the
home; search measures to rescue or assist victims of domestic violence;
suspension of the aggressor from the custody and upbringing of minor
children, depending on the severity of the acts of violence or the direct or
indirect damage or danger to which they may be subjected; prohibit the
possession of weapons in the common home and seize them; measures
restricting the aggressor from approaching the common home, place of work,
study or other place where the victim is; suspension of visitation regulations;
order the aggressor to cover the costs of repairing the victim's property or
medical care; prohibition of minor children from leaving the country; special
protection for the victim from the authorities of the National Police, effective
where the victim requests it.

Article 5 provides that in the event that the official considers that a measure
that is not within his/her jurisdiction should be applied, he/she must send a
copy to the competent official, requesting the application of the protection
measure that he/she deems necessary, within the within 72 hours and once the
file is returned to his office, he must proceed to the corresponding authorities.

On the other hand, article 6 of Law 38 establishes that the protection measures
will have a duration of 6 months and they can be extended for the time that the
process takes, also noting that failure to comply with any of said protection
measures part of the aggressor, a sanction for contempt being applicable. In
accordance with article 10, protection measures may be applied ex officio or
at the request of an interested party, verbally or in writing, and the remedies
established by law are available against them, according to the jurisdiction of
the authorities, as provided in the article. eleven.

Chapter III of Law 38 contains the provisions on jurisdiction, establishing that

the aforementioned protection measures can be applied by the administrative
police (corregidurías and night courts), the Agents of the Public Ministry and
the authorities of the Judicial Branch according to their competition (art.7).
The authorities of indigenous peoples who administer justice according to
their customs and traditions are authorized to apply the protection measures of
their internal regulations and, in a supplementary manner, those established in
article 4 of Law 38 (arts. 7 and 8).

Article 12 of Law 38 includes an addition to Article 46 of the Penal Code,

establishing supervised community service as an accessory penalty.

Let's see below what the crimes of domestic violence and child abuse are
according to the aforementioned Law 38 (article 13 of the law), namely:

1. Article 215 A establishes that as facts that constitute the crime of domestic
violence, physical, sexual, patrimonial or psychological aggression or
harassment against a person, which carries a penalty of 1 to 3 years or with a
curative security measure that It will consist of a multidisciplinary therapeutic
treatment program with specialized care. Psychological aggression will be
verified by a forensic psychiatrist or a forensic psychologist (article 13 of Law
38 of 2001). It is clearly observed that the modification of the norm
establishes more severe sanctions than those contemplated in Law 27 of 1995,
since the minimum prison sentence was increased to 1 year and the maximum
to 3 years.

In addition, a new type of violence not contemplated in the previous law is

introduced, such as patrimonial violence, which is defined as the "willful
action or omission that involves damage, loss, transformation, theft,
destruction, retention or distraction of objects, work instruments, personal
documents, goods or other economic resources intended to satisfy the basic
needs of the people" of the family nucleus. It also includes as patrimonial
violence the unjustified limitation on access and management of common
property.

2. Article 215 B, only the second paragraph of said article was modified
regarding the penalty, since in Law 27 the aggravating circumstance
contemplated was punishable by 3 years in prison, while Law 38 increases the
maximum penalty to 5 years. of prison. (article 13 of Law 38).

3. Article 215 D, criminalizes the crime of abuse against a child or adolescent

under 18 years of age and punishes it with imprisonment of 2 to 6 years or
with a curative security measure or both and establishes the behaviors that are
considered child abuse. minors. (article 13 of Law 38). The sanction for this
crime increased the minimum sentence to two years, while that contemplated
in Law 27 of 1995 was only 1 year and maintained the maximum at 6 years;
Numeral 2 contemplated in Law 27 was also eliminated, since said conduct
constitutes a separate crime.

The modification of Article 215 E (215 D in Law 27 of 1995) includes the

obligation to inform the authorities of the execution of any of the acts typified
in the Title, while the previous rule only indicated the obligation regarding of
an act classified as domestic violence or child abuse.

Article 17 of Law 38 provides that for crimes of domestic violence and abuse
of children and adolescents, the judge in the case may defer the execution of
the sentence, so that it is carried out on weekends so that the The aggressor
keeps his or her source of income.

In our opinion, although this on the one hand can be considered an advantage
in not so serious cases, in addition to the fact that the aggressors are in prison
on weekends, which is when the greatest number of cases of violence, on the
other hand, allowing those to continue working during the week could
encourage the continuation of criminal actions in the event that the aggressor
engages in pornography, prostitution, etc., which does not seem appropriate to
us. Therefore, this measure must be carefully analyzed when granting it.

Another important modification that Law 38 contemplates is that of article 15,

which adds article 220 A to the Penal Code, classifying the crime of sexual
harassment and punishing it with imprisonment of 1 to 3 years and although it
is an important advance, I consider that for The effects and consequences of
this crime must be the subject of specific legislation that contemplates
definition, types, procedures and appropriate sanctions, since this provision
only refers to sexual harassment in relationships in which there is labor
subordination, leaving out the bullying in the educational field, as well as
other types of bullying. Harassment and sexual harassment must be sanctioned
in all those institutional spaces in which hierarchies exist.

In relation to the procedural provisions, Law 38 modified article 1984 A of the

Judicial Code, regarding the name of domestic violence for domestic violence
and included a paragraph that indicates that when it comes to patrimonial
violence, the withdrawal will proceed when has compensated for the damage
caused, even if the affected person is a minor. Three new articles on
psychological or psychiatric evaluations of minors were also added;
therapeutic treatments and recovery for victims of crimes, the expenses of
which must be borne by the aggressor. (arts.19, 20, 21 of Law 38)

Law 38 also contemplates the development of public policies aimed at

coordinating, promoting, developing and supervising dissemination programs,
through the media, aimed at preventing and eradicating violence and
disseminating the law; in addition to training programs for police and health
personnel. This responsibility is the responsibility of the Ministry of Youth,
Women, Children and Families. It is also established that all health centers,
emergency rooms, medical and hospital centers, clinics and offices, whether
private or public, must attend to cases of domestic violence. It is also
mandatory for health and administrative personnel to document, using forms
issued by the Ministry of Health, the medical history, clinical findings,
diagnosis and provisional incapacity - psychological and physical - of the
victim of domestic violence or child abuse. boys, girls or adolescents; form
that must be sent to the Institute of Legal Medicine within 48 hours following
the care of the patient, so that the corresponding instruction process can
continue and in the case of minors, it will be sent to the Children's Courts and
Adolescence. It is also established that budget items must be allocated in the
General State Budget for the year 2002 for the execution of plans and
programs for the dissemination and promotion of the law. (arts. 22 to 27 and
34).
Law 38 also contemplates the duty of the Ministry of Education to incorporate
and promote in study plans and programs at all levels, values based on the
principles of tolerance, respect for differences and diversity, equality and
gender equity. , and promote programs to prevent violence and abuse of
minors (art. 28).

The Ministry of Government and Justice and the municipalities of the

Republic have the duty to raise awareness and train magistrates and night
judges in the correct application of the domestic violence law. The obligation
to keep a statistical record of acts of domestic violence and child abuse is
established, which must be sent to the National Commission of Criminal
Statistics (CONADEC) of the Ministry of Government and Justice. (arts. 29,
30).

Law 38 also involves civil society, non-governmental organizations, private

entities and independent professionals in promoting dissemination, awareness-
raising, training and execution of the Law, together with State entities. Tax
incentives are even granted to those who provide free legal sponsorship to
victims of violence or child abuse (arts. 31 and 32).

In a brief summary I have tried to offer the most important aspects related to
the crimes of domestic violence and child abuse, in accordance with the
modifications and additions introduced by Law 38 of July 10, 2001, however,
I want to conclude by pointing out that although the issuance and modification
of laws is important, they are of no use if the social structures that have made
such laws necessary are not modified, because as a phrase by Sheena says: "It
takes strength to overcome violence, not to surrender to her."