Isabel García Domínguez
Researcher in training at the University of Salamanca, Department of General Public Law, Spain. Currently Visiting Researcher at the University of Leeds, funded by the British Spanish Society Scholarship 2022
Aporophobia, which means the hate or rejection of poor people, was conceptualised by Adela Cortina in 1996. However, this term was rarely used until 2017. The most relevant actions for the dissemination of the word aporophobia were: the publication of the book entitled Aporofobia, el rechazo al pobre: Un desafío para la democracia by Adela Cortina; and the inclusion of aporophobia in the dictionary of the Royal Academy of the Spanish Language (García Domínguez, 2020). Since then, considerable research has developed, highlighting the Spanish Project titled Aporophobia and Criminal Law (2019-2022). According to Pérez Cepeda y Benito Sánchez (2022), the aporophobic Criminal law has two sides: the criminalisation of poverty and the under-protection against crimes motivated by aporophobia (aporophobic hate crimes). Although there are manifestations of aporophobia in Criminal law, these aporophobic manifestations have been accentuated in administrative law, and more specifically, in municipal ordinances. These particularly affect marginalised groups, due to regulating many aspects of their daily life. One paradigmatic example is homeless people, especially those who spend most of their time on the street, i.e. ‘rough sleepers’. Nevertheless, the criminalisation of homelessness has scarcely been studied in Spain (García Domínguez, 2020). Thus, taking into account the excessive impact on the freedoms and rights of homeless people and the insufficient attention paid to the issue, research was carried out to analyse the administrative sanctioning of homelessness in Salamanca, Spain. The content analysis included Municipal ordinance on citizen coexistence, 19 November 2008 (Ordenanza Municipal de convivencia ciudadana, 19 de noviembre de 2008, OMCC from now on) of Salamanca (See Puente Guerrero, 2020); and the Organic Law 4/2015, of 30 March, on the protection of citizen security (Ley Orgánica 4/2015, de 30 de marzo, de protección de la seguridad ciudadana, LSC henceforth) at national level (Spain). The research question and the results are shown in the following table:
|Are the following behaviours sanctioned on public roads and in public spaces in Salamanca?|
|Cluster||Answer||Máximum fine (€)|
|Physiological needs and/or spitting||Yes (arts. 15.1 and 22.1d of the OMCC)||750€|
|Lighting and/or maintaining fires||Yes (arts. 16.2c and 22.2h of the OMCC)||1,500€|
|Using public assets for purposes other than those for which they are intended, such as sleeping or camping, and washing or bathing||Yes (arts. 5, 12.1, 16.1, 16.2b, 17, 22.1c, 22.2g, 22.2g of the OMCC), except sleeping rough||1,500€ camping/ 750€ others|
|Handling litter bins or containers (or their contents) and illegal dumping||Yes, minor offence (arts. 11 of the OMCC and 33.1 of the OMLYR)||750€|
|Others||Failure to keep or maintain legal documents and negligence in custody and preservation (arts. 37.10 and 37.11 of the LSC) Criminalisation of offering or accepting sexual services (art. 36.11 of the LSC)Drinking alcohol in public places (art. 37.17 of the LSC)||100€ /600€ 601€/ 30,0000€ 30€/600€|
The analysis conducted revealed that many of the behaviours that homeless people engage in to survive, such as satisfying their physiological needs, washing in a fountain or taking food from containers, are fined in Salamanca. Likewise, they sometimes perform other actions included in the LCS, such as street prostitution (especially women as a strategy for not sleeping on the street) or drinking alcohol. But we have to realise that, for rough sleepers, the street is the only place where they can live their lives. Consequently, as the use of public spaces is increasingly regulated, homeless people face more and more obstacles, while losing their freedom. As Waldron (1991-1992) stated “if sleeping is prohibited in public places, then sleeping is comprehensively prohibited to the homeless. If urinating is prohibited in public places (and if there are no public lavatories) then the homeless are simply unfree to urinate” and so on. On the other hand, of all examined behaviours, there was only one exception of unpunished practice: sleeping rough.
Although it was established that many of the activities that rough sleepers routinely engage in are fined, I wanted to take this research further. My next objective was to find out whether police forces enforced these rules and fined people because of their poverty. To this end, I conducted empirical research in Salamanca. My study group was formed of homeless people who had lived and slept on the street at some point in their lives. I designed and circulated a questionnaire, obtaining 14 responses. The main conclusion was that they were rarely fined for the behaviours referred to in the table. Although this is a positive result, we need to eliminate all the manifestations of criminalisation of poverty in our legislation (Maroto Calatayud, 2016). Also, further investigation should be carried out at national level. It is essential to know not only whether there is criminalisation of homelessness in municipal ordinances, but also whether they are being enforced. Thus, I encourage the academia to conduct further research on this issue and to fight the criminalisation of poverty. The homeless are a vulnerable group that face many adversities every day and criminalising them because of their poverty only will worsen their already difficult situation. As Anatole France (1844-1924) stated “in its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread”.
Funding details:This research has been carried out within the framework of the grant awarded by “Consejería de Educación” of the “Junta de Castilla y León” under the Order EDU/601/2020, which calls for grants to finance the pre-doctoral recruitment of research personnel, co-financed by the European Social Fund, and the research project “Aporofobia y Derecho penal”, funded by the Ministry of Science, Innovation and Universities. Years 2019-2022 (Ref.: RTI2018-095155-B-C21). Main researcher: Ana Isabel Pérez Cepeda.
Acknowledgements: I would like to thank the homeless shelters in Salamanca and Eva María Picado Valverde for helping me with this research.