No. Following National Law 26.485, the standard of proof is flexible and judges should analyze the evidence pursuant to the principle of "sound judgment." In fact, judges should consider the presumption that tends to demonstrate the facts claimed by the victims (Section 31 of National Law 26.485).
Yes, the Criminal Code contemplates the following affirmative defenses (not all of which may be successful with regard to an accusation of domestic violence):
- insufficiency of mental faculties or due to a state of unconsciousness, error or ignorance regarding the facts, not attributable to the accused, that make them incapable of understanding the criminality of the act they are accused of or to direct their actions
- when the accused is subject to irresistible physical force or threats of serious and imminent harm
- state of need (i.e., the accused alleges being forced to commit one crime to avoid another, which is imminent and greater than the former, and with regard to which the accused has no relation or responsibility)
- whoever acts in compliance with a duty or in the legitimate exercise of their right, authority or position (not likely to be invoked in cases of domestic violence)
- if the accused acts by virtue of due obedience (not likely to be invoked in cases of domestic violence)
- anyone who acts in self-defense or their rights or the rights of another, provided that the following circumstances concur: (a) illegitimate aggression; (b) rational necessity of the means used to prevent or repel it; and (c) lack of sufficient provocation on the part of the defender or the third party being defended
- violent emotion (extenuating circumstance)
Yes. Generally, unless expressly indicated otherwise on the legal provision that contemplates the crime, all crimes require intent. Crimes regarding domestic violence do not contemplate the possibility to commit such crimes by negligence. Consequently, it is reasonable to affirm that they require willful intent.
In this regard, under Argentine laws and case law, willful intent can be divided into three subcategories: (i) direct willful intent; (ii) indirect willful intent; and (iii) willful disregard. Firstly, direct willful intent would imply that the offender had a direct and immediate desire or intent to commit the crime he is accused of in all of its elements (both objective and subjective). Secondly, indirect intent or intent of the necessary consequences is present when a result occurs that is not desired in principle by the offender, but that appears inherently to the final purpose and is accepted by the offender. Thirdly, willful disregard poses the scenario where the offender knows about the possibility of the occurrence of a criminal act and consents or accepts it (e.g., the offender intends to hit the victim in the head to injure her. The offender contemplates the possibility that his actions may result in the victim's death and, although that is not his direct intent, he accepts such possibility. If the victim dies, then the offender would have engaged in a murder with willful disregard).Yes. Under the National Criminal Code, anyone who falsely accuses a third party of a crime before the authorities may be subject to two months to up to one year in prison and a fine of ARS 750 up to ARS 12,500. Additionally, under the National Criminal Code, a person that falsely accuses another specific person of committing a criminal offense can be punished with a fine of ARS 300 to ARS 30,000.
Under Argentine law, consent requires a person to be legally capable of expressing their will, conscious of their actions and free to make their decision. Consequently, among other scenarios, an individual cannot legally consent when: (i) they are underage (lack of legal capacity); (ii) they are inebriated or under the influence of narcotics or other substances that prevent them from comprehending their actions (lack of consciousness); (iii) they are unconscious; (iv) they have a mental illness or another incapacity and they are judicially declared incapable of manifesting consent other than by means of their guardian or representative (lack of legal capacity); and (v) they are forced or threatened (lack of freedom to choose).
Concerning crimes against sexual integrity, the National Criminal Code assumes, without allowing evidence to the contrary, that individuals younger than 13 years old are not legally capable in any case of consenting to sexual acts. Furthermore, it establishes a sanction of four to 13 years in prison when sexual abuse is committed under circumstances in which the offender took advantage of the victim's lack of ability to freely consent to the sexual act for any reason.Under the National Criminal Procedural Code, relatives in the collateral line up to the fourth degree of consanguinity or the second degree of affinity may refrain from testifying against the accused and his guardians, curators and wards, unless the witness is a complainant, plaintiff or civil actor or the crime appears to be carried out to his detriment or against a relative of his degree equal to or closer to the one that links him to the accused.
The National Criminal Procedural Code also states that the defendant's spouse, their relatives in the ascending and descending line or their siblings may not testify against the accused, under penalty of nullity, unless the crime appears to be carried out to the detriment of the witness or of their relative in a degree equal to or closer than the one that links them to the accused.A relationship of consanguinity or affinity with the defendant allows them to refuse to provide testimony (see the exceptions indicated in the question immediately above). The witness may also allege that they were temporarily legally "insane" at the time of the events that they were asked to provide a witness statement about or that they were acting in a state of unconsciousness at the time. A witness may also refuse to testify when their testimony could be self-incriminatory under Article 18 of the Argentine Constitution.
The application of criminal sanctions will depend on whether the domestic violence resulted in murder or malicious or grievous bodily harm to the victim or assault, and the severity of the harm and the circumstances of each case will determine the prison time and, therefore, the possibility of suspending the enforcement of the ruling.
In this regard, under the Criminal Code, when the judge convicts the offender for fewer than three years of imprisonment, if this is the offender's first offense, the judge may suspend the enforcement of the conviction under certain strict conditions that, if not complied with by the offender, will trigger the enforcement of a prison sentence.The sentences of confinement and imprisonment for more than three years inherently carries: (i) a penalty of absolute disqualification, for the time of the sentence, which may last for up to three more years if the court so decides, according to the nature of the crime; (ii) the deprivation of parental authority, while the sentence lasts; (iii) the deprivation of the administration of the offender's assets, while the sentence lasts; and (iv) the right to dispose of assets by acts inter vivos.
Additionally, the offender may be ordered to provide monetary compensation to the victim.