The resolution of the Council of Ministers No. 88/2003 of July 7 defines domestic violence as "(...) all violence, physical, sexual or psychological, that occurs in a family environment and includes, but is not limited to, mistreatment, sexual abuse of women and children, rape between spouses, crimes of passion, female sexual mutilation and other harmful traditional practices, incest, threats, arbitrary deprivation of liberty, and sexual and economic exploitation.
The conduct that typifies the crime of domestic violence includes psychological aggression that the perpetrator commits against his victim, with the understanding that, in this case, the active subject is understood to be the perpetrator who has a family, parental, or dependency relationship between the perpetrator and the victim, thus consubstantiating a criterion of "special reason for trust", and the respective taxpayers are all those listed in Article 152, no. 1 in their respective paragraphs of the Penal Code (henceforth the CP).
I. Principal and accessory penalties applicable
Under the terms of article 152, no. 1 of the Criminal Code, the main penalty for the crime of domestic violence is imprisonment for a term of one to five years, with only one exception, which is that the conduct of the perpetrator is subsumed under another type of crime for which a more severe penalty is provided.
It is worth mentioning that there is an increase in the penalty, under the terms of nº 2 and 3 of art.152 of the Criminal Code, in cases of acts against a minor, in the common home or in the victim's home, or the dissemination of personal data, images or sounds relating to the intimacy of the private life of one of the victims without their consent, which provides for a prison sentence of two to five years.
If there is: (i) bodily harm or; (ii) death, the penalty can vary from two to eight years or three to ten years respectively. The law also provides for a set of accessory penalties that may coexist with the primary penalty under the terms of paragraph 4 of art.152 of the Criminal Code, which may consist of a ban on contact with the victim and a ban on the use and carrying of weapons, as well as attendance at specific programs for the prevention of domestic violence.
II. The vulnerable victim: the child
As we have seen above, the crime of domestic violence is committed against particularly defenseless people who live with the perpetrator and, therefore, under the terms of art. 67-A of the Code of Criminal Procedure (hereafter CPP), the child is considered a "victim" because it is an "especially vulnerable victim" due to its fragility resulting from its age and dependence on its parents.
III. Parental Alienation as Domestic Violence
Parental alienation is a social phenomenon that arises within the family, as a result of a couple's separation or divorce, and consists of the emotional distancing of the child from one of the parents by an intentional action determined by selfish interests where the child becomes a "weapon" with the purpose of reaching the alienated parent.
This alienation can take many forms such as excluding or limiting contact with the child, suggesting to the child that he or she is not loved by the alienated parent making the child take sides in the conflict among other conflicts. The result in the future of an alienated child may give rise to serious psychological problems such as fear, anxiety or hatred.
However, despite the fact that this problem exists (and has evolved year after year), what is certain is that there is no norm in the legislative framework that specifically regulates the social phenomenon in question, however, this obstacle is also accepted by the legal system as domestic violence, more specifically in the psychological form, as it causes a damaging effect on the psychological and emotional structure of the child, so that, although the legal good is protected by what is configured in Article 152 of the CP, there is no specific legal crime dedicated only to Parental Alienation.
It is understood, however, that in the present case, the legal good that is intended to be protected will be the health, physical and psychological integrity, personal integrity and the free development of the child's personality that the configuration of this crime aims to protect.
In short, parental alienation can be included in the scope of domestic violence because it consists of violent acts (not in the physical sense) against the child, including acts of manipulation by the parent in a malicious way, thus requiring the use of these rules for these situations, but since the legal good is protected, it will be necessary to create a specific framework.
Rodrigo Tiopista (Extra Curricular Internship in Law) January 10, 2023
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