Eficacia del Derecho Penal ecuatoriano en la prevención y sanción de la violencia vicaria

Abstract

Gender-based violence represented a social, cultural, and legal problem that persisted at both national and international levels, highlighting the urgent need for State responses aimed at protecting women’s rights. Within this context, vicarious violence was understood as a manifestation of psychological violence exercised indirectly, through the instrumentalization of children or other affective bonds, with the purpose of causing emotional harm to women. In Ecuador, this manifestation of violence generated a legal debate regarding its explicit recognition and the limits of criminal law intervention. The general objective of this research was to analyze vicarious violence from a legal, criminal, and guarantee-based perspective, examining its treatment within the Ecuadorian legal system, particularly in the Código Orgánico Integral Penal and Ley Orgánica Integral para Prevenir y Erradicar la Violencia contra las Mujeres. To this end, a legal-doctrinal methodology was employed, based on normative, doctrinal, and comparative analysis, as well as on the examination of the legislative reform bill submitted in 2024. The results showed that vicarious violence could be legally understood within the offense of psychological violence, without the need for its incorporation into the criminal legislative system. It was concluded that the expansion of the criminal catalogue was contrary to the principles of penal guarantees and to the essence of criminal law as a mechanism of ultima ratio, and that strengthening the application of existing norms and comprehensive public policies of prevention and protection proved to be more effective.