New gender-based violence law has workplace implications
A new law seeking to provide an integrated system of protection for women who are victims of gender-based violence was adopted in Spain in December 2004. Among other areas, the law includes a number of measures of direct significance for employment - for example, women facing gender-based violence may suspend their employment relationship (with maintenance of social security rights and a right to return) and change their workplace or job.
Awareness of the problem of gender-based violence, affecting mainly women, has increased in Spain in recent years, and the reporting of an increasing number of cases has led to public concern. A total of 92 deaths were attributed to such violence in 2004, while there is concern about the effects on families and children, and sometimes about employment-related aspects. A number of legislative measures have been adopted of late, notably: Organic Law 11/2003 of 29 September 2003 relating to specific measures on law enforcement, domestic violence and social integration of aliens; Organic Law 15/2003 of 25 November 2003, which modified the Penal Code (Código Penal) to take account of gender-based violence; Law 27/2003, of 31 July 2003 regulating the order of protection of the victims of domestic violence; and various laws in the regions.
However, these measures were seen as inadequate in terms of detecting gender-based violence, providing assistance to women who are victims of aggression and punishing aggressors. The resources available were regarded as highly insufficient and the approach as too narrow, failing to take preventive action or seek educational solutions. Though there were procedures for reporting gender-based violence, they had proven to be ineffective and a culture of 'insensitivity' was reported among the relevant authorities.
In this context, Organic Law 1/2004 on 'integrated protection against gender-based violence' (Ley Orgánica de Protección integral contra la Violencia de Género) was enacted on 28 December 2004. The law introduces new measures for the protection, prevention, support and recuperation of the victims of gender-based violence, in particular women. It covers; education; social issues; care and assistance for victims and children; civil regulations concerning the family and cohabitation; and punishment and education through the penal system. The law also lays down specific regulations relating to employment and the socio-economic sphere.
Main points of the law
The main aim of the new is to prevent and deal with situations of gender-based violence and their consequences through an integrated approach. It is based on the idea that such violence is not a problem just affecting the private sphere but a consequence of inequality in society. Women are considered to be the victims because they are considered by their aggressors - in general men - as people without the minimum rights of freedom, respect and decision-making capacity. This violence takes extreme forms such as sexual aggression, violence against partners and harassment in the work environment (ES0409106F). The aim is to fight inequality in the power relations that have traditionally marked relations between men and women.
The general measures set out in the law include:
- measures aimed at awareness-raising and intervention in education (as part of the secondary education syllabus);
- efforts to reinforce respect for the equality and dignity of women, with special reference to advertising;
- measures to support victims, such as a right to information and to full social care and specialised services;
- in the area of health, early-warning systems and healthcare for the victims, and the application of health 'protocols' in cases of aggression;
- legal aid for women on low incomes who are victims of violence;
- measures to protect minors with regard to their individual rights and as part of the protection of women who are victims of gender-based violence; and
- consideration of victims of gender-based violence as a priority group for access to public housing.
The law provides legal procedures and a substantial body of penal and civil regulations, in addition to training for teachers, health workers, the police force and legal staff involved in the application of the law. Aggression against a female spouse or partner with whom the aggressor has an emotional relationship, whether or not the couple are living together, will be considered as an aggravating circumstance in court cases. Coercion and minor threats will be considered as a crime. People convicted of homicide or injury to their partners or ex-partners will lose their entitlement to a widowhood pension (unless they are later reconciled in the case of injury). Furthermore, people convicted of this type of crime will not receive any orphan's pensions to which their children may be entitled through their partners, ex-partners or women linked to them through a similar emotional bond, even if they have not lived together.
The law establishes a Special Government Office against Violence to Women (Delegación Especial del Gobierno contra la Violencia sobre la Mujer) and a National Observatory on Violence against Women (Observatorio Estatal de Violencia sobre la Mujer), both under the auspices of the Ministry of Labour and Social Affairs (Ministerio de Trabajo y Asuntos Sociales, MTAS). A Public Prosecutor on Violence against Women (Fiscal contra la Violencia sobre la Mujer) will be appointed within the Ministry of Public Prosecution (Ministerio Fiscal).
The new legislation also includes a number of measures of direct significance for employment and the sphere of work:
- victims of gender-based violence will have rights in terms of absence from work, geographical mobility within their job and suspension of the employment contract with a right to return;
- victims may join a specific programme for integration in employment (specially created if necessary), with financial assistance, in order to protect both the victims and children who are indirect victims of the violence;
- the social security rights and benefits of workers who are victims of gender-based violence will be preserved, whether they are wage-earners or self-employed. In the case of the former, if they stop working in order to protect themselves or use their right to integrated social care, their obligation to pay contributions will be suspended for a period of six months, which will be considered as a period during which contributions have been paid for the purposes of social security benefits, and they will continue to be considered as contributors to the system. In the case of the latter, the period of suspension of employment with a right to return will be considered as a period in which contributions have been paid for the purposes of retirement, permanent disability, death or survival, maternity and unemployment benefits; and
- where employers use 'internship' contracts to replace workers who have suspended their employment contract or exercised their right to a change of location or workplace because they are victims of gender-based violence, they will receive a 100% subsidy of their general social security contributions in respect of the replacement worker. The contributions will be subsidised during the full period of suspension of the replaced worker's contract, or six months in cases of geographic mobility or change of workplace.
Practically unanimous support
The new law on gender-based violence received practically unanimous support in parliament and in public debate. A discussion arose over whether to extend the law to all people who find themselves in a situation of lack of protection or weakness. An amendment was finally introduced, but only with regard to the penalties for aggressors, not to protect people in a vulnerable situation who may not be women. A debate also arose over possible discriminatory treatment of men in the new provisions. However, the law was not modified in this sense and it therefore seeks to defend women (and dependent minors) without considering cases of gender-based violence by women against men.
The feminist movement has achieved a major victory with the new law on gender-based violence. It has promoted an awareness of the inequality and violence suffered by women, brought out a social problem that was previously concealed, and made society question models of cohabitation that are structurally unequal. (Daniel Albarracín, CIREM Foundation)