6. Special issues | Chile | Fighting Domestic Violence

6.1 Battered woman syndrome

6.1.1 Can lawyers present evidence of battered woman syndrome or other domestic abuse as an affirmative defense to crimes that the battered woman has committed? (Note: Battered Woman Syndrome is accepted by courts in certain jurisdictions to show that battered women can use force to defend themselves and sometimes kill their abusers due to abusive and life-threatening situations.)

Yes.

6.2 Domestic violence in the workplace

6.2.1 Can courts issue orders to protect employees suffering from domestic violence?

In the event that the victim and the offender work in the same place, and where the offender has been prohibited from approaching the victim, the employer must adopt the necessary protective measures.

6.2.2 Can departure be deemed "for good cause" if related to domestic violence?

Employers cannot interfere in the family lives of their employees; therefore, acts of domestic violence for which a worker is being prosecuted or convicted do not constitute grounds for a justified dismissal.

If the court prohibits the offender from approaching the victim and both the victim and the offender work in the same place, the employer must take measures to ensure that the order is enforced, but this does not constitute grounds for a justified dismissal.

Notwithstanding the preceding information, the employment contract may be terminated with grounds in cases of sexual harassment, physical abuse against another worker and workplace harassment. In such cases, the act of domestic violence can be classified in one of these categories and, consequently, the employer could terminate the aggressor's contract (Article 160, No. 1 of the Labor Code).

6.2.3 Can family members of domestic violence victims take reasonable leave to help the victim seek treatment or obtain help and services?

Generally, no. In some cases, family members have the right to a leave period to take care of a sick family member (minors).

6.3 Immigration

6.3.1 Does the law include provisions that are intended to prevent abusers who are citizens or permanent residents from using immigration laws to perpetrate domestic violence against their spouse?

No. There are regulations that prohibit trafficking migrants for sexual exploitation. Article 411-quater of the CP prohibits coercion, deceit, abuse of power or the exploitation of the vulnerability or dependence of the victim for sexual exploitation, forced labor, servitude, slavery or similar practices, but it does not refer specifically to domestic violence.

6.3.2 If battered immigrants cooperate with law enforcement in domestic violence, can they obtain immigration remedies?

There are no specific rules for migrants. The same rights apply to migrants as to Chileans. With regard to illegal migrants, Chile is currently in the process of regularization, the impact of which will make it easy to regularize the legal situation of a migrant in Chile. It is enough not to have a criminal record in their country of origin.

A special visa requires the holder to have a link with a Chilean national or resident. The loss of the link could mean the loss of the visa. However, there is a period of 30 days to change the visa status, during which time the holder may apply for a different type of visa (e.g., an employment visa).

6.3.3 Does domestic violence law discuss asylum accessibility?

No.

6.4 Armed forces

6.4.1 Can a victim seek a military protective order if the abuser is in active military?

Generally, every member of the military has the obligation to report any act of domestic violence of which they become aware; but in cases of domestic violence, general criminal rules will apply.

6.5 Child custody and child/spousal support

6.5.1 Do judges follow special rules to determine custody or visitation of children in domestic violence cases?

During the procedure, the judge must determine a regime of visits or prohibit the access of the offender to minors, as the judge deems appropriate. In the sentence that determines the existence of domestic violence, the judge will determine the definitive foods, the personal care regime and the direct and regular relationship of the children, if any, and any other family matter submitted to their knowledge by the parties (Article 9 of the LVI).

6.5.2 Can the judge consider the testimonies of the other spouse and the children when determining custody?

Yes.

6.6 Housing rights of domestic violence victims

6.6.1 Does the law include any barriers to prevent landlords from forcing a tenant to move out because they are victims of domestic violence?

No.

6.6.2 Does the law allow a tenant to terminate his/her lease early due to domestic violence?

No.

6.6.3 Can an order exclude the abuser from the residence?

Yes, if the court orders this as a protection measure.

6.6.4 Can abusers be forbidden by court orders to alienate or mortgage the property in his/her name if it is the family domicile?

Yes, the judge must give protection to the victim and the family group, protecting both their economic subsistence and patrimonial integrity. For such purposes, the prohibition of celebrating acts and contracts is specifically established as a precautionary measure, such as the sale or mortgage of the property in which the family lives.

On the other hand, in the event that the victim is the spouse of the offender, even in the absence of domestic violence, they can request that the family home be declared family property, in which case the offender may not reside in it.

Additionally, real estate property purchased during the marriage cannot be sold or encumbered without the written consent of the female spouse.

6.7 Possession of guns

6.7.1 Does a domestic violence conviction prevent an abuser from owning guns?

At the beginning of or during the procedure, a judge may order that the aggressor be prohibited from carrying or possessing firearms. Furthermore, if the judge convicts the aggressor, the judge can commission the weapons owned by the aggressor.

6.7.2 When a protection order is issued by a judge as a result of domestic violence, does the law require that the authority secures and stores any firearms owned by the aggressor?

Yes. The police must remove weapons from the home to which they have been called for cases of domestic violence. During the procedure, the judge may issue a preventive order prohibiting possessing and carrying weapons and, in their sentence and among other matters, they must decide whether to confiscate or prohibit possessing and carrying weapons.

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