The offence of breach of sentence in cases of gender-based violence: a legal and jurisprudential analysis of Article 468.2 of the Spanish Criminal Code in relation to non-approach orders

Abstract

This article examines the offence of breaching a restraining order in the context of gender-based violence, as regulated in Article 468(2) of the Spanish Criminal Code. It analyses the subjective elements of the offence, with particular attention to intent (dolo), the victim’s consent, mistake, and scenarios involving fortuitous encounters. Through an up-to-date review of case law and legal scholarship, the study shows that most judicial decisions consider that a general intent—indeed, even eventual intent—is sufficient for criminal liability, without requiring a specific intent or a direct purpose to disobey the judicial order. The article also addresses the controversy surrounding the victim’s consent, which the Spanish Supreme Court has deemed legally irrelevant, and explores how this stance may conflict with fundamental principles of criminal law, such as culpability and proportionality.

The discussion of mistake of fact and mistake of law highlights the need for an individualized assessment of each case, ensuring that the accused had effective knowledge of the measure. Closely related to this point, the article underscores the importance of clear and personal service of the judicial order as an essential requirement for properly grounding criminal reproach.

Finally, the paper argues for a rights-based and contextual interpretation that avoids automatic punitive responses and strikes an appropriate balance between effective judicial protection and the defendant’s fundamental guarantees, in light of the complexity of social relationships in situations of gender-based violence.