The role of witnesses in gender violence cases in Spain

Gender violence almost never happens in public, but someone almost always hears something: a neighbour, a friend, a relative, a work colleague. These people can be decisive, both in protecting the victim at the time and in enabling a court to assess afterwards what happened. If you have ever wondered what to do when witnessing a situation like this, or what weight a witness carries at trial, here are the answers.

What to do if you witness gender violence

1. If there is immediate danger, call 112 (or 091 for the National Police or 062 for the Guardia Civil). Give the exact address and say what you can see or hear.
2. Do not put yourself at risk. You do not need to intervene physically; alerting the police is the safest way to help.
3. Write down what you perceive: date, time, what you heard or saw, who was there. If you can record from a safe place, do so, but never share those images on social media or by messaging apps: hand them only to the police or the court.
4. Stay with the victim if possible, without pressuring her. Let her know she is not alone.
5. Get information from 016. It operates 24 hours a day, also for relatives and people close to the victim, and gives guidance on what to do and what resources exist.

If you know the victim and she has not yet taken that step, the article how to identify the early warning signs of gender violence may help you understand what she is going through.

Am I obliged to report it?

The law establishes several duties:

• Article 259 of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal, LECrim): anyone who witnesses a public offence is obliged to bring it immediately to the attention of the judge, the public prosecutor or the police. The fine provided for is still expressed in pesetas and is symbolic, but the duty exists. Gender violence offences within a couple are public offences: they are prosecuted even if the victim does not report them.
• Article 264 LECrim: anyone who learns of the offence by other means must also report it, without needing to prove it.
• Article 262 LECrim: professionals who learn of an offence by reason of their position (healthcare staff, teachers, social workers) must report it.
• Article 450 of the Criminal Code (Código Penal): it is an offence to fail to prevent, when one could do so by immediate intervention and without risk to oneself or others, an offence against life, physical integrity, freedom or sexual freedom, and also to fail to go to the authorities so that they can prevent it.
• Article 15 of Organic Law 8/2021: anyone who notices signs of violence against a minor must report it to the authorities immediately.

Article 261 LECrim exempts the spouse or partner of the perpetrator and his close relatives from the duty to report, but that exemption does not apply when the victim is a minor or a person with a disability in need of special protection and the offence is, among others, against life, one of habitual abuse or against sexual freedom.

The weight of each type of witness at trial

In gender violence cases, the victim’s statement can be sufficient evidence, but the courts test it against external facts. Witnesses are one of the most important sources of corroboration.

Article 710 LECrim requires a hearsay witness to specify the source of what they know, identifying who told them. Testimony describing the victim’s condition just after the events (crying, frightened, injured) usually carries a great deal of weight.

Every witness is obliged to appear when summoned by the court and to tell the truth: giving false testimony is an offence (art. 458 CP), whether it favours or harms the accused. This also applies to those who testify at the request of the defence. If you are afraid of reprisals, tell the police or the court: the legislation provides for witness protection measures.

Children as witnesses

Children often witness the violence, and the law also considers them victims. To spare them further harm:

• Children under 14: when they have to testify as witnesses in proceedings for offences such as bodily harm, offences against freedom, against moral integrity or against sexual freedom, the judge must take their statement as pre-recorded evidence (prueba preconstituida), recorded and with full safeguards, so that they do not have to repeat it at trial (art. 449 ter LECrim).
• Under-18s: if they testify at trial, visual confrontation with the accused must be avoided, including by means of videoconference (art. 707 LECrim).
• The statement can be taken with the support of psychosocial teams.

If you are worried about how to protect your children during the proceedings, read how gender violence affects children.

Family members’ exemption from testifying (art. 416 LECrim)

Article 416.1 LECrim allows the accused’s relatives in the direct line, his spouse or unmarried partner (pareja de hecho), his siblings and his collateral relatives up to the second degree not to testify against him. This is why a victim sometimes decides not to testify against her partner or ex-partner.

Organic Law 8/2021 introduced five exceptions in which the exemption does not apply:

1. When the witness is the legal representative or de facto guardian of a victim who is a minor or has a disability.
2. When the offence is serious, the witness is an adult and the victim is a minor or a person with a disability in need of special protection.
3. When the witness, because of their age or disability, cannot understand the meaning of the exemption.
4. When the witness is or has been a party to the proceedings as a private prosecutor (acusación particular).
5. When the witness agreed to testify during the proceedings after being informed of their right not to do so.

The fourth exception reflects the doctrine laid down by the plenary Supreme Court (Tribunal Supremo) in judgment STS 389/2020: a victim who joined the proceedings as a private prosecutor does not regain the exemption even if she later withdraws from that role. This has important practical consequences, both for the victim and for the defence, and it is advisable to assess it with a lawyer before making any decisions.

If the victim relies on the exemption, the proceedings can continue on the basis of other evidence, such as witnesses, medical reports or recordings. We explain this in what to do if the complaint is withdrawn or dismissed.

Frequently asked questions

Can I report gender violence if I am not the victim?

Yes. Anyone who witnesses or knows of a gender violence offence can and should report it, because these are public offences that are prosecuted by the authorities of their own motion. You can call 112 in an emergency or go to the police, the Guardia Civil or the court. You do not need to provide evidence: it is enough to say what you know.

What weight does a hearsay witness carry?

A hearsay witness is someone who knows about the facts because they were told about them. They cannot replace the direct witness when that witness can testify, but they help to corroborate that the victim gave the same account at the time and to describe her condition. Under article 710 of the Criminal Procedure Act, they must state who they obtained the information from.

Can the victim refuse to testify against her partner?

Yes, in principle, because article 416 LECrim exempts the spouse or unmarried partner from testifying against the accused. But she cannot do so if she is or has been a party as a private prosecutor, if she has already agreed to testify after being informed of her right, or in the other situations introduced by Organic Law 8/2021.

Do children have to testify at trial?

Every effort is made to avoid it. In proceedings for offences such as bodily harm, offences against freedom or against sexual freedom, children under 14 testify by means of pre-recorded evidence taken during the investigation stage, which is then played at trial. Under-18s who have to appear do so without visual confrontation with the accused, for example by videoconference.

Whether you are a victim and want to know how to make the most of the testimony of people around you, or the accused and need to analyse the credibility of the prosecution witnesses, we can help you. See our pages on fast-track trials for gender violence (juicios rápidos) and defence for men in domestic violence cases, or call us on 607 449 491, available 24 hours a day.