Exemption from testifying in gender violence cases: article 416

The exemption from testifying in gender violence cases is one of the most delicate decisions a victim can make. Many women arrive at trial with doubts: out of fear, because they have gone back to their partner, because of the children or because they do not want to relive what happened. In principle, the law recognises their right not to give evidence against their partner, but with limits that are worth knowing before you enter the courtroom.

If you are a victim and are considering claiming the exemption, discuss it first with a lawyer specialising in gender violence who defends women: the decision affects your protection, the proceedings and what you will be able to do afterwards.

What article 416 LECrim says

As a general rule, all witnesses are obliged to state what they know (art. 707 LECrim). Article 416.1 exempts certain relatives of the accused from that obligation: ascendants and descendants, siblings, collateral relatives up to the second degree and, most relevantly here, the accused’s spouse or person in a de facto relationship similar to marriage.

The judge must inform that person that she is not obliged to give evidence against the accused, although she may make any statements she considers appropriate, and her answer is recorded. The exemption is not limited to the investigation stage: at trial, article 707 LECrim maintains the same exception to the duty to testify.

The exemption protects a real conflict: that of a person who would have to choose between telling the truth against a member of her family or failing to tell it. It is not a withdrawal of the complaint or a pardon, and it does not by itself bring the proceedings to an end.

The exceptions since Organic Act 8/2021

Organic Act 8/2021 on the comprehensive protection of children and adolescents against violence, in force since 25 June 2021, added five situations 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 a person with a disability requiring special protection.
2. When the offence is serious, the witness is an adult and the victim is a minor or a person with a disability requiring special protection.
3. When, because of age or disability, the witness cannot understand the meaning of the exemption.
4. When the witness is or has been a party to the proceedings as private prosecutor.
5. When the witness agreed to give evidence during the proceedings after being duly informed of the right not to do so.

The last two are the ones that most affect victims of gender violence. The fourth means that, if you have joined the proceedings as private prosecutor, you do not get the exemption back even if you later give up that role. The fifth means that, if during the investigation you were informed of your right not to testify and chose to testify, you will not be able to refuse at trial.

What if we are no longer a couple?

The wording of the law refers to the spouse and to the person in a de facto relationship similar to marriage. If the relationship ended before the events or was a dating relationship without living together, whether the exemption applies depends on the specific circumstances and on how the court assesses them. This point must be reviewed case by case.

What happens if the victim does not testify

The proceedings are not automatically dismissed. Gender violence is a public offence and the prosecutor continues to press charges if there is sufficient evidence. What changes is that the victim’s statement, often the main evidence, disappears from the trial.

Nor can it simply be replaced by reading out what the victim said earlier. The LECrim only allows investigation steps that cannot be repeated for reasons beyond the parties’ control to be read out or played at trial, or a recorded statement taken as pre-trial evidence (prueba preconstituida) with all the safeguards (arts. 449 bis and 730 LECrim). In practice, therefore, if the victim claims the exemption, the case will depend on the other evidence. If there is none, the likely outcome is an acquittal or a dismissal, and with it the protection measures lapse.

If you are already in that situation, also read what to do if a gender violence complaint is withdrawn or dismissed.

Other evidence that can support the prosecution

• Medical reports and forensic reports on the injuries and whether they are consistent with the events reported.
• Direct witnesses: neighbours, relatives or people who saw the assault. We explain this in the role of witnesses in gender violence cases.
• What the officers saw for themselves when they arrived: visible injuries, disorder, the state of the victim or of the accused.
• Digital evidence: messages, voice notes, emails or posts, with their context and date.
• Psychological reports and reports from specialist services.

Our evidence guide to proving you are a victim of gender violence helps you gather and preserve this material from the outset.

If you are the accused

If the complainant claims the exemption, your defence must analyse what evidence remains and whether it is enough to overturn the presumption of innocence. But never try to influence her decision: pressuring her with violence or intimidation to change her statement is an offence punishable by one to four years in prison and a fine (art. 464 of the Criminal Code, Código Penal, CP), and any contact can also be a breach if there is a restraining order. This is how we approach the defence of men accused of gender violence.

The exemption in Alicante: what the data show

According to the annual report of the Observatory against Domestic and Gender Violence of the General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ), published by the High Court of Justice of the Valencian Community (Tribunal Superior de Justicia de la Comunitat Valenciana) on 31 March 2026, 3,563 victims claimed the exemption in the Valencian Community in 2025, almost 14% of the total. Of these, 1,622 were in the province of Alicante, where 10,230 victims were recorded that year.

In the city of Alicante, these proceedings are investigated by the Gender Violence Section of the Court of First Instance (Sección de Violencia sobre la Mujer del Tribunal de Instancia) (Avenida Aguilera, 53), and trials without a plea agreement are held in the Criminal Section (Sección de lo Penal). Celeste Pérez Bleda, with more than 20 years’ experience in criminal law, works through the decision whether or not to testify with each victim, explaining its consequences beforehand. Our team can assist you in English.

If you are going through something like this, you can talk to a gender violence lawyer in Alicante: we explain your options clearly, whether you are a victim or have been accused.

Frequently asked questions

Can I refuse to testify against my partner in a gender violence trial?

In principle yes, if you are married or in a relationship similar to marriage: article 416 LECrim exempts you from giving evidence against him. But you cannot do so if you are or have been a party to the proceedings as private prosecutor, or if you agreed to testify during the proceedings after being informed of your right not to do so.

If I do not testify, will the case be dismissed?

Not necessarily. The prosecutor can maintain the charges on the basis of other evidence: medical reports, witnesses, what the officers saw or messages. If your statement was the only incriminating evidence, the case will most probably end in dismissal or acquittal, and the protection measures will then lapse. That is why it is worth assessing this with your lawyer beforehand.

Can I claim the exemption if I gave evidence before the investigating judge?

If, when you gave that statement, you were informed of your right not to testify and still chose to do so, article 416.1.5.º LECrim rules out the exemption at trial. It is important to check how that warning was recorded in the case file, because whether the exception applies depends on it.

Do I get the exemption back if I stop being private prosecutor?

No. Article 416 LECrim rules out the exemption when the witness “is or has been” a party as private prosecutor. Once you have joined those proceedings, even if you later withdraw from the prosecution, you will have to testify if you are summoned as a witness. That is why it is a decision that must be made on an informed basis.

Can I be forced to testify if I am his ex-girlfriend?

The law grants the exemption to the spouse and to the person in a de facto relationship similar to marriage. If you never lived together or the relationship ended before the events, whether it applies depends on the circumstances and on the court’s view. If it does not apply, you have the general duty to give evidence as a witness.

Deciding whether or not to testify is your right, but you should not make that decision alone or on the day of the trial. We explain what may happen in each case and accompany you in the courtroom, and our team will assist you in English. Find out about our work defending women who are victims of gender violence or message us on WhatsApp at 607 449 491, 24 hours a day: we will reply straight away. If you want to go over the whole procedure, see also what happens after reporting gender violence.