INTRODUCTION

The victims of aggression against women and members of the nuclear family are the couple, i.e., the wife, husband, and children; those who endure and suffer abuse and punishment are the woman and the children. The woman receives violent acts such as physical violence, psychological violence, sexual violence, and gender violence, while the children receive punishments such as beatings and mistreatment. Being the mother who becomes on many occasions the voluntary victim because she depends on the man emotionally, economically, and effectively, being thus the one who considers that she has been wrong and justifies the violent actions of the aggressor, becoming a vicious circle, because they are the minors who will be reflected with this type of conduct and now they will be the future aggressors or assaulted.

Currently, there are more frequent cases of extreme violence against women or members of the family, reaching such a point that the violence becomes murder. For this reason, the realization of this research project is based on the importance of the family for society and the importance of taking care of it, protecting it, and watching over it, so it is very important the type of penalty that should have these crimes.

In the present article, it consists with the pertinent information, exposing all that information, legal, doctrinaire, and conceptual referring to this delicate subject; beginning with the identification of the proportionalities of the penalties and the origins of the family and in turn its importance, searching on the different terms that are linked and are inherent in this action of violent character. From there it is passed to determine and to consult the different criteria of specialists in the subject and of the most important scholars.

After this, information about domestic violence is presented, the type of violence, classes, effects, and degrees that exist within the family nucleus, analyzing why the victim tolerates this type of acts and which are the laws that protect and protect within this issue that occurs at world-wide level.

In addition, files were made to compare the laws that are related to violence against women and members of the nuclear family that is related to the legal regulations of Ecuador in comparison with those of other countries. The legal aspect was also analyzed in terms of the penalties that an aggressor receives when he or she commits some type of violence.

1. THE FAMILY AS THE BASIS OF SOCIETY

Tabera and Rodríguez (2010) defined the family as “the institution or basic social system par excellence. The family is the primary frame of reference and belonging of an individual, which enables the development of their capabilities” (s. p.), which means that the family is the organism where the foundations of the individual will be constituted, which will take place throughout life, positively or negatively.

1.1. Criminal Dosimetry

The dosimetry of the penalties and sanctions for the Constitutional Court of Colombia determines that it is a loose matter to the legal definition. Manifesting this at the moment that the legislator commits a punitive excess of type expelled or not written in the constitution, being its social character of human reality, principles, and autonomy. Basing itself fundamentally on the principles of proportionality and subsidiarity of the penalty, so that it is only when it is precisely necessary. The penal dosimetry is an issue left to the legal definition; however, it is up to the judges to ensure the respect that must be given to the principles of proportionality and reasonableness (Garcia, 2011).

In addition, Dr. José García Falconí (2011) indicates that, in our Constitution of the Republic of Ecuador, the principle of equality is typified in Art. 11 numeral 2, which talks about all people are equal before the law, guaranteeing the same duties, rights, and opportunities for all; they are governed in principles, such as. No one may be discriminated against based on socioeconomic status, disability, gender identity, age, sex, cultural identity, political affiliation, judicial background, language, religion, etc. The state is the one who will take the necessary measures to guarantee and promote equality for those who want to violate this right and are in a state of inequality.

Thus, establishing that justice, peace, freedom, good living, and solidarity are prioritized, with judges administering justice based on the Constitution.

This principle comes from principles such as proportionality and reasonableness, thus justifying the variety of treatment, estimating the relationship between the means used and the end to be achieved.

Dr. José García Falconí (2011) explains that:

In addition, the principle of harm or material unlawfulness, as is generally known and as the doctrine indicates, as stated above, it follows that there must be a relationship of proportionality between the typical conduct and the punitive response, so that the severity of the penalty depends on the gravity of the offense, since the principle of equality. (p. 8)

Criminal dosimetry is a subject that requires an academic study, which is constituted in a legal way to the principle of proportionality of penalties. It is based on objectives, being the character of scientific and normative thinking of the law. The penalty will always depend on the degree that it has either in the judicial or legislative part it will be based and will depend on the degree of intensity with which the violation of the criminal protected legal good was committed (Zambrano, 2019).

In addition, Falconí (2016), in an opinion column published in the newspaper El Universo explains that:

When we speak of penal dosimetry, we refer to the application of the principle of proportionality to penalties, both by the legislature when imposing a specific sanction for conduct defined as a crime, as well as by judges and courts when deciding specific cases. The imposition of punishment and its magnitude will depend, both legislatively and judicially, on the intensity with which the criminal legal right protected by the criminal type has been violated or endangered. In less technical language, it will depend on the amount of damage that has been caused. (p. 1)

In summary, penal dosimetry is that which is expressed now that the legislator is going to commit a punitive excess that is not prescribed in the law. The dosimetry is based on the principles and the lifestyle or human reality of society, on the principle of proportionality and subsidiarity of the penalty; requiring a profound study of an academic nature that is composed legally. It is up to the judges to ensure that the principles of proportionality and reasonableness are respected and respected.

Dr. José García Falconí (2011) points out that the burden or magnitude of the penalty either in the legislative part or in the judicial part will be given depending on the degree of magnitude with which the act that caused the violation of the criminal protected legal right was carried out.

The principle of lesivity is the typical conduct, giving the punitive response concerning the principle of proportionality; that now of dictating the penalty it will be given depending on the seriousness of the infraction committed.

This is a fundamental principle, which serves a peaceful and harmonious coexistence, alluding precisely to the fact that there will be no criminal offense, process, or penalty, without it being typified and in force in the law. Which is legally directed by a legislator, guaranteeing the “taxatividad” of the penalty.

It will be published in the official registry. The principle of legality has the function of limiting the abuse of power, seeking that public power is always following the law. In our Constitution of the Republic of Ecuador (2008):

In all proceedings in which rights and obligations of any kind are determined, the right to due process shall be ensured and shall include the following basic guarantees:

(…)

No one may be tried or punished for an act or omission which, at the time it was committed, was not classified by law as a criminal, administrative, or other offense; nor shall a penalty not provided for by the Constitution or the law be applied to him or her. A person may only be tried before a judge or competent authority and with observance of the proper procedure for each proceeding. (art. 76.3)

1.2. Family context and intimate partner violence against women

According to Ribero and Sánchez (2005) (cited by Espinoza, Vivanco, and Vargas, 2019) indicate that those women who grew up in a home of violence, where the mother was beaten and abused, suffering aggressions coming from her partner, are those who, at the moment of having a personal relationship, are more prone to live this type of situations, since, due to what they have lived, their vision will be to tolerate this type of behavior in the family environment. At the same time, they come to believe that the father or the man in the relationship is the one who will have the power to exercise violence to impose his thoughts and authority as the dominant person in the family nucleus.

The World Health Organization (n.d.) indicates that:

The percentage of ever-partnered women who had experienced physical and/or sexual violence by a partner in their lifetime ranged from 15 to 71 percent, although rates in most settings ranged from 24 to 53 percent. (p. 3)

According to the United Nations, until 1991, only 22 countries in the world granted women the same rights and opportunities as men in matters of family property, marriage, and divorce. Violence against women is caused by the unequal power relations between men and women. The problem continues to develop in the implanted stereotypes that are negative, affecting those networks of support where the woman who lives the type of mistreatment goes so that the due attention and protection are offered to them, but, by the raised stereotypes, they are victimized by those organisms that are supposed to offer them the necessary protection (Ruiz, Blanco, and Carmen, 2004).

The National Institute of Women (2006) explains that:

Partner violence usually begins during the dating relationship, and in most cases continues and is accentuated in married life; in a significant proportion, it continues to manifest itself after the violent relationship has ended, with aggressions towards the woman by the ex-partner. (p. 3)

Sanmartín et al. (2010) indicate that intimate partner violence affects all kinds of people, no matter what social class, educational level, or country they belong to. This is one of the forms of gender violence with the highest rates of development and spread in the world. People consider this type of violence as repulsive and scourge, however, even so, they tend to admit and allow this type of treatment within their relationships, becoming people tolerable to violence. They perceive violence as a normal act, as if it were part of a relationship with their intimate partner, without allowing a third party to intervene, thinking that it should be resolved between the members of the relationship. Considering that it is not other people’s business, preventing the help of third parties.

Bronfenbrenner (1979) (cited by Sanmartín et al., 2010) expresses that risk factors can be presented in different ways, whether individually, socially, family, or culturally. In addition, no factor explains why some people are more violent than others or why violence tends to develop in more specific places or other communities; but what is important is how it influences itself and its factors.

1.3. Elements of the Crime according to the Ecuadorian Organic Integral Criminal Code

Human activity has much to do with the human character, referring to humans as an agent and not patients, being susceptible to commit a crime. On the other hand, Typicity is the typical conduct that leads to an act or omission that is established as a crime within a legal body. As for the antijuridicity, it is the typical, antijuridical and guilty voluntary conduct. That is, it is contrary to law and is unlawful, which injures or endangers property or interests protected by law. Finally, culpability is divided in two ways: a) malice or the intention to harm; b) guilt or the act by negligence or without intention (COIP, 2014).

Guilt is divided into these two ways, the first being with the precise intent to cause pain or harm, while the second is by an act of recklessness leading to guilt.

1.4. Types of violence typified in the Comprehensive Organic Criminal Code of Ecuador

Among the principles of our constitution, it states that it is a constitutional state of rights, justice, and social duty, guaranteeing, in turn, the right to a culture of peace, comprehensive security, and democratic society. In the same prologue, it indicates the constitution of society respecting in all its aspects, the decency and dignity of persons and their collectivities.

It has been established as a right and guarantees sexual and reproductive, moral, physical integrity, non-discrimination in their human and psychological freedom. All of this includes women and all individuals who are part of our nation. Our state has as necessary measures of protection, the prevention, punishment, and elimination of all acts or types of sexual violence, disappearance, prostitution, or forced sterilization; in the Organic Integral Penal Code, they are typified with their respective sanctions as crimes against humanity.

The social reality concerning violence against women was previously a topic that was far removed from the Constitution of the Republic of Ecuador and our punitive code, but today it has been introduced and is part of our Ecuadorian penal system, forming part of the Code of Criminal Procedure (COIP).

Our state through our Organic Integral Penal Code (2014) in articles 155 to article 158 indicates that it is typified and punished in the crimes of violence that occurs against women or members of the family nucleus, which is given these provisions from our constitution. Article 155 states that all mistreatment or any form of violence, whether against women or members of the family nucleus, which is carried out by a member of the family nucleus, is defined as violence, and classified as such. In cases of violence that produce or generate injuries that are given against the woman, or any member of the family nucleus will be sanctioned by Art. 156 maintaining the same penalties that are foreseen in the crimes of injuries, but with a higher degree of one-third.

Article 155.- Violence against women or members of the nuclear family: Violence is any action consisting of physical, psychological, or sexual mistreatment by a family member against a woman or other members of the nuclear family.

Members of the nuclear family are the spouse, common-law or unmarried partner, cohabitant, ascendants, descendants, sisters, brothers, relatives up to the second degree of affinity, and persons with whom it is determined that the defendant maintains or has maintained family, intimate, affective, conjugal, cohabitation, dating or cohabitation ties.

Article 156.- Physical violence against women or members of the nuclear family: The person who, as a manifestation of violence against women or members of the nuclear family, causes injuries, shall be punished with the same penalties provided for the crime of injury increased by one third.

Article 157.- Psychological violence against women or members of the nuclear family. - –

Any person who, as a manifestation of violence against women or members of the nuclear family, causes damage to mental health through acts of disturbance, threat, manipulation, blackmail, humiliation, isolation, surveillance, harassment or control of beliefs, decisions, or actions, shall be punished as follows:

If minor damage is caused that affects any of the dimensions of the integral functioning of the person, in the cognitive, affective, somatic, behavioral, and relational spheres, without causing impediment in the performance of their daily activities, shall be punished with imprisonment of thirty to sixty days.

If the person is moderately affected in any of the areas of personal, work, school, family, or social functioning that causes prejudice in the fulfillment of their daily activities and therefore requires specialized mental health treatment, shall be punished with a penalty of six months to one year.

If it causes severe psychological damage that even with specialized intervention has not been reversed, it will be punished with imprisonment of one to three years.

Article 158.- Sexual violence against women or members of the family nucleus: The person who, as a manifestation of violence against women or a member of the family nucleus, imposes on another and forces her to have sexual relations or other similar practices, shall be punished with the penalties provided for in crimes against sexual and reproductive integrity. (COIP, 2014)

2. METHODOLOGICAL ASPECTS

For this article, interviews were conducted with criminal lawyers, judges, and prosecutors in the criminal area specializing in domestic violence, to obtain a more precise point of view that would help to respond to the objectives of the research. In addition, files were elaborated in which the articles that penalize the types of violence against women or members of the family nucleus are observed.

The following table shows the articles referring to the different types of violence in the selected Latin American countries, being those that penalize the different types of violence and aggression by the aggressor.

This table explains physical, psychological, and sexual violence. Physical violence is an action that causes harm to another person, and can be physical or even material, i.e., the use of objects causing even more damage. Its purpose is to cause injuries both externally and internally.

Psychological violence is the one that, although it may seem the “mildest” is the one that affects the most because it reaches the point of generating that the assaulted person sinks into a hole from which it is very complex to get out, accepting and tolerating the aggression by the partner and even thinking that he/she deserves such treatment, blaming him/herself for what happened. Sexual violence is an act that involves threats or force and that occurs without the consent of the victim.

4.1. Laws that criminalize domestic violence in Latin America

The articles of the Ecuadorian Comprehensive Organic Criminal Code that criminalize the types of domestic, psychological, sexual, and physical violence that an aggressor can commit can be seen in sheet number one. As can be seen in the sheet, the aggressor can receive a penalty of up to one year’s imprisonment and the penalty can even be increased depending on the type of violence that the aggressor has committed.

In card number two, you can see the articles of the Integral Law Against Violence against Women and of the reforms to the law no. 641, the “penal code” of Nicaragua that penalizes physical violence in art.-10 and psychological violence in art.-11.

In tab number three, we can see the Law against Femicide and Other Forms of Violence against Women, Article 7 of which criminalizes violence against women in Guatemala. The aggressor in this country can receive a sentence of up to eight years depending on the seriousness of the crime committed.

Unlike Guatemala and Nicaragua where an aggressor receives eight to seven years in prison for committing some type of violence, in Ecuador these laws are very docile when sentencing a person who has committed an act of this kind, putting only one year of pressure when in this case the penalties should be more severe.

4.2. Violence against women throughout the life cycle

Table 4 shows the different acts of violence that a woman suffers in her life cycle, which causes any type of harm and is generated by the simple condition of being a woman. It presents an endless number of acts in the different aspects that go from discrimination to violence that can be physical, psychological, and sexual.

Interviews with judges and lawyers in Guayas:

The first step is to make the relevant complaint so that protection measures can be issued. These protection measures are the judicial way that helps to avoid new infractions, being tools of a positive nature, protecting the rights of women, aiming to eliminate violence. The most applied protection measures in Ecuador are the injunction and the order to leave the home of the person being prosecuted. These measures are those that are taken at the time of cohabitation between the victim of violence and the aggressor.

Protective measures are issued in times of need and protection, but they are also to prevent acts of violence. The judges who issue these measures are there to protect the psychological, physical, and emotional integrity of the victim. The protection measures help to reduce the rate of violence, because the aggressor, knowing that he has been notified, knows that it is not appropriate to approach her because he would pay with jail. The state judicially has many laws that protect women and the family, it is not that the state does not have the necessary measures, but rather it is something social because in our society the feminine is devalued by the supremacy of the masculine.

CONCLUSIONS

From this article, it can be concluded that violence against women and members of the family nucleus is based on all members of the family, but even more so in women, since it is the one that is directly affected, proliferating, or hugely reproducing itself, such as the situation in our country that in the Judicial Units it has gotten out of control.

In the same way at the international level, it has been possible to verify the statistics of the worldwide commotion that is lived, by the cases of so aberrant crimes that have arisen against women.

With violence against women and members of the nuclear family, the principles, and constitutional rights such as the right to life, physical integrity, good physical and mental health and to stay in a healthy place, the violation of these principles is observed.

These treatments and episodes of violence towards women are received within the family nucleus as well as outside; they are presented within these two circumstances since, once the conjugal relationship is over, the victimizer does not accept this separation, believing that the woman is his property, continuing and creating more violent actions. This is how crimes occur in our country.

The changes in our Penal Norms, based on the dosimetry of the judges, mainly now of punishing based on the principles of proportionality for both the offenders and the victims.

For this reason, the following is recommended:

a. To regulate and at the same time structure psychological treatment programs for victims of domestic violence and aggressors in the same way, especially in those cases where there are minors involved or those who are in a state of vulnerability or emotional dependence.

b. That those authorities of the Judicial Units demand regulations where there is a good functioning of shelters, to deal specifically with this issue and this problem such as violence.

c. To campaign for the creation of a culture of peace and harmony, promoting equal rights for all in schools and colleges, and to raise the issue of domestic violence in a more upright and professional manner.

d. That Ecuador’s judicial system should monitor compliance with psychological therapies with greater importance.

e. Reform the articles on the different types of violence against women or members of the nuclear family in the Comprehensive Organic Criminal Code, which are found in articles 155 to 155.

158 (COIP)

f. Respect the different rights of both the victim and the aggressor, being judged impartially and under the management of the law

g. Correctly follow the procedures as set out in the law, respecting the rights of citizens

REFERENCES

Asamblea Constituyente del Ecuador. Constitucion De La República del Ecuador. (2008). Quito.

Espinoza, S., Vivanco, R. y Vargas, A. (2019). Violencia en la familia y en la relación de pareja en universitarios de Osorno, Chile. Polis, Revista Latinoamericana, (52). Recuperado de: https://journals.openedition.org/ polis/16993

Falconí, J. (9 de mayo de 2016). ¿Dosimetría penal? El Universo. Recuperado de: https://www.eluniverso.com/ opinion/2016/05/09/nota/5569719/dosimetriapenal

García, J. (11 de marzo de 2011). La proporcionalidad o dosimetría de las penas. Derecho Ecuador. Recuperado de: https://www.derechoecuador.com/la- proporcionalidad-o-dosimetria-de-las-penas

Instituo Nacional de las Mujeres. (2006). Violencia en las relaciones de pareja.Resultados de la Encuesta Nacional sobre la Dinámica de las Relaciones en los Hogares, 2006. Recuperado de: http://cedoc.inmujeres.gob.mx/ documentos_download/100924.pdf

Organización Mundial de la Salud. (s. f.). Violencia contra la mujer infligida por su pareja. Recuperado de: https:// www.who.int/gender/violence/who_multicountry_ study/summary_report/chapter2/es/

Ruiz, I., Blanco, P. y Carmen, V. (2004). Violencia contra la mujer en la pareja: determinantes y respuestas sociosanitarias. Gaceta Sanitaria, 18 (2), pp. 4-12. Recuperado de: http://scielo.isciii.es/scielo.php?script=sci_ arttext&pid=S0213-91112004000500003&lng=es&tlng =es.

Sanmartín, J., Iborra, I., García, Y. y Martínez, P. (2010). III Informe Internacional Violencia contra la mujer en las relaciones de pareja. Estadísticas y Legislación. Centro Reina Sofía. Recuperado de: https://www.researchgate. net/publication/307445582_III_Informe_ Internacional_Violencia_contra_la_mujer_en_las_ relaciones_de_pareja_Estadisticas_y_Legislacion

Tabera, V. R. (2010). La institución o sistema social básico por excelencia.

Zambrano, M. (2019). Dosimetría penal ante dos o mas sentencias privativas de libertad en una persona. Cantón Santo Domingo. (Trabajo de Disertación). Universidad Regional Autónoma de los Andes, Santo Domingo. Recuperado de: http://dspace.uniandes.edu.ec/ bitstream/123456789/10598/1/PIUSDAB082-2019.pdf

Notas de autor

Enlace alternativo

http://www.revistarfjpuce.edu.ec/index.php/rfj/article/view/359/210 (pdf)