We must specify in principle that the crime of gender violence does not exist because it is not classified as such in the Penal Code.
Gender violence is a criminal aggravating circumstance and could give rise to civil measures.
The typified crimes that are prosecuted with gender perspective They are: threats, injuries, slander, insults, coercion, abuse, rape, completed or attempted homicide, femicide; among some.
Violence against women is not a biological or domestic issue but rather a gender one, and it continues to be a deficit in public policies for the comprehensive protection of women in the three spheres: prevent, eradicate and punish; as real and integral protection of women according to the normative framework of Law No. 26,485.
Violence is violence and is nourished by conventional violent crimes, being any act of violence -active or omissive-, physical, sexual, psychological, moral, patrimonial, etc., that affects women because of their gender, based on the discrimination, in the relations of inequality and asymmetrical power between the sexes that subordinate women, be it in public or private life, including that which is perpetrated or tolerated by the State.
Violence is power and power generates submission, damage, suffering, imposition of a will, domination and submission.
This understanding locates us in principle that the crime of gender violence per se it does not exist, but rather that it is associated with crimes that are judged from a gender perspective and, furthermore, that not every crime against women is gender violence since there must be a link of power between the passive subject -woman-, the active subject -man- and a criminal context.
Moreover, being risky we can even affirm that the aggravating circumstance of gender violence would be a non-existent aggravating circumstance, because this aggravating circumstance requires a supplementary law (blank criminal law) in penal measures that contain a penalty; This may imply a violation of the principle of legality. Even when we refer to the Argentine legislation of a complementary law, we find that it does not exist.
However, judges in these circumstances must apply the principle of maximum limitation, and in the face of an imprecision of the criminal law norm, being the spring of all judicial processes the National Constitution, they cannot interpret it analogically having as options then, declare the unconstitutionality or maintain the restriction of the punitive power of interpretation of said norm.
However, in reality, the constitutional principles in judging these cases appear to be inoperative instruments and when we mention them they are interpreted only as an expression of desire.
Montesquieu affirmed: “There is no crueler tyranny than the one that is perpetrated under the shield of the law and in the name of justice.”
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