Author: João Marcos de Carvalho Pedra
Law plays a fundamental role in regulating interpersonal relationships. Because society cannot self-regulate through standardized behaviors, given the plurality of ideas and cultures, laws take shape as a tool for human control.
Among the main forms of social control, it is important to highlight the importance of Criminal Law in the perspective of repressing acts that threaten life, property, family, and physical integrity.
Over the past few years, there has been much discussion about methods to curb and punish aggressors who threaten the lives and physical integrity of women. In this context, a name emerges that is popularly known today, and which changed the lives of many women and allowed for a broader debate on the subject: Maria da Penha.
Who was Maria da Penha and how did her law come about?
Before the Maria da Penha case, in the seventies, a group of women took to the streets with the slogan "whoever loves doesn't kill," thus energetically raising the banner against violence, and this issue was included in the feminist agenda as one of its main demands.
Maria da Penha Maia Fernandes, a biopharmaceutical scientist from Ceará, has become a symbol of resistance and the fight against domestic violence in Brazil.
In 1983, after years of an abusive relationship, she was the victim of an attempted murder by her husband, the Colombian economist Marco Antonio Heredia Viveros. He shot Maria da Penha while she slept, leaving her paraplegic.
Even after this attempt, Heredia continued to assault her and, on another occasion, tried to electrocute her while she was taking a bath. These episodes motivated Maria da Penha to seek justice, and her case became a landmark in the fight against impunity and for the creation of mechanisms to protect women.
The trial against his attacker, however, faced a number of difficulties. It took two decades for him to be convicted, and that only happened after the case was taken to international bodies.
In 1998, Maria da Penha appealed to the Inter-American Commission on Human Rights (IACHR), which held the Brazilian State responsible for negligence and omission in protecting women. In response, Brazil committed to adopting measures to combat domestic violence and protect women victims of aggression.
Thus, in 2006, Law 11.340, better known as the Maria da Penha Law , was enacted, named in honor of her history of struggle. This legislative innovation represented an unprecedented advance in Brazilian legislation, creating a set of measures to prevent and punish domestic and family violence.
The new law established ways to protect women, broadening the definitions of violence beyond physical violence to include psychological, sexual, financial, and moral violence, as well as providing for the creation of Domestic and Family Violence Courts against Women.
Furthermore, it was established that aggressors could be arrested in the act, prohibiting the crime from being treated as a minor offense, which had allowed for alternative punishments in the past.
After its implementation, Brazil saw a strengthening of the network protecting women, with the creation of specialized police stations, shelters, and victim assistance programs.
Data that deserves highlighting.
Awareness of domestic violence has increased significantly, and the law has served as the basis for many awareness campaigns and reports. Recent data indicate that the creation of the law has had a positive impact on increasing reports of violence, as it has encouraged many women to seek help and support.
In some regions of the country, the number of homicides of women in domestic contexts has decreased, although violence against women is still a serious problem in Brazil.
It is important to emphasize that the decrease in cases of domestic violence is undoubtedly paramount. But one piece of data that deserves to be highlighted is the increase in the number of reports. In 2021, 82.872 reports were filed. In 2022, there were 87.794 reports. And in 2023, there were 114.848 reports.
The increase in the number of reports does not necessarily correspond to an actual increase in domestic violence, but it does, to some extent, demonstrate an increase in women's encouragement to report it.
The Maria da Penha Law also inspired other legislation, such as the classification of femicide in the Penal Code in 2015, which increased the penalty for homicides committed for reasons of gender.
Nevertheless, the scope of the Maria da Penha Law has been broadened over the years. As stated in Statement No. 46 of Fonavid: " The Maria da Penha Law applies to transgender women, regardless of any change in their registered name or sex reassignment surgery ."
A series of decisions by the Superior Courts (STJ and STF) has shaped the application of the Maria da Penha Law , as well as sought to curb different forms of gender-based violence.
In August 2012, the Superior Court of Justice ruled that the Maria da Penha Law applies to former partners as long as there is a non-ephemeral bond between the male aggressor and the female victim. (The ruling in case HC 182.411/RS).
At the same time, as established by Precedent 600/STJ, " For the configuration of domestic and family violence foreseen in article 5 of Law 11.340/2006, the Maria da Penha Law, cohabitation between the perpetrator and the victim is not required ." In other words, it is irrelevant whether the aggressor and the victim reside in the same location.
As for the procedure, the Superior Court of Justice understands that it is necessary " to hear the testimony of the woman who is a victim of domestic violence in order to revoke the previously granted emergency protective measure " (STJ, AgRg in REsp 1775341).
This decision reaffirms the Judiciary's commitment to the truth of the facts. This is because it is important to emphasize that a victim of aggression tends to remain in a scenario of psychological abuse and violence, even if the aggressor is imprisoned.
Nevertheless, it is common to see women in situations of violence withdrawing their complaints due to the fact that they are financially dependent on their husbands, which is why imprisonment would cause a considerable decrease in their financial resources.
However, it is necessary to prevent victims from requesting the revocation of protective measures for reasons unrelated to the effectiveness of judicial services and the pursuit of protection for women.
Finally, it is important to highlight a precedent from the Supreme Federal Court regarding the fight against violence against women, in which it was established that " In trials involving the crime of femicide, jurors CANNOT pardon and acquit the accused out of clemency " (RHC 229558).
Despite the progress made, Brazil still faces challenges in ensuring the safety of all women, and Maria da Penha's struggle continues to serve as a reminder of the importance of justice and ongoing protection.
Her story and the creation of the law were fundamental in making domestic violence a priority issue and in raising awareness and taking action to combat this type of violence.
Bibliographic references
BORGES, Beatriz. Maria da Penha Law turns 18, but violence against women continues to grow in the country. G1. Brasília. Published on August 07, 2024. Available at: https://g1.globo.com/politica/noticia/2024/08/07/lei-maria-da-penha-completa-18-anos-mas-violencia-contra-a-mulher-segue-crescendo-no-pais.ghtml. Accessed on: November 03, 2024.
CALAZANS, Myllena; CORTES, Iáris. The process of creation, approval and implementation of the Maria da Penha Law. In: Maria da Penha Law commented on from a legal-feminist perspective. Rio de Janeiro: Lumen Juris, v. 193, 2011
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS/ORGANIZATION OF AMERICAN STATES. Report No. 54/01, Case 12.051, Maria da Penha Maia Fernandes, April 4, 2001, Brazil. Available at: http://www.sbdp.org.br/arquivos/material/299_Relat%20n.pdf. Accessed on: September 27, 2018.
WHO is Maria da Penha. Maria da Penha Institute. Available at: https://www.institutomariadapenha.org.br/quem-e-maria-da-penha.html. Accessed on October 03, 2024.
