Studies related to the debate surrounding gender perspectives are increasingly growing worldwide, especially when the goal is to understand the actual role of the State in protecting and guaranteeing women's human rights. 

Gender equality is a fundamental principle of democratic societies, but unfortunately it remains a distant reality in many aspects of daily life. Within the criminal justice system, gender inequalities can be particularly pronounced, affecting how cases are handled and judged.

This article will address the gender perspective in criminal proceedings. As will be demonstrated, this article aims to convey the idea that incorporating a gender perspective into criminal proceedings is fundamental to ensuring equal treatment and justice for all parties involved.

Next, we will explore the impacts of a gender perspective on the criminal justice process and the importance of its adoption. Furthermore, we will address the challenges with concrete and important examples to support the proposed understanding.

The gender perspective presents several interesting nuances that could translate the history of the struggle for equal rights – or perhaps more egalitarian rights – but due to space constraints, here we will only discuss the gender perspective in criminal proceedings. 

What is Gender Perspective in Criminal Proceedings?

The word "gender" does not exclude the word "sex" from international instruments, but since 1990 the implementation of the term has introduced the idea that violations of women's rights should be perceived as a product of a power asymmetry between women and men, where the State has a duty to act in promoting equality in the face of this disparity.

The gender perspective is a concept that refers to the analysis of the social roles and expectations assigned to men and women in a given culture. In the context of criminal proceedings, the gender perspective implies considering how gender inequalities and stereotypes can affect the administration of justice and the treatment of the parties involved in the process.

In light of this, several documents have been developed to assist, incorporate, and guide analysis and decision-making. These are parameters to ensure the justice system adopts a sensitive and welcoming language with a gender perspective, preventing the reproduction of gender stereotypes and the revictimization of women, especially within the criminal justice system.

For visualization purposes, the development of National Guidelines for investigating, prosecuting, and judging victims of femicide with a gender perspective can offer lines of action, elements, techniques, and practical instruments with an intersectoral and multidisciplinary approach, in order to improve the practice of public security professionals, justice officials, and any specialized personnel who may intervene during the investigation, prosecution, and trial of femicides.

From the underreporting of sexual crimes to victim-blaming in domestic violence cases, gender distortions in the criminal justice process can have serious and lasting consequences for those involved. A gender perspective implies considering how gender inequalities and stereotypes can affect the administration of justice and the treatment of those involved in the process. 

The Importance of Adopting a Gender Perspective and its Challenges

The need to incorporate a gender perspective into legislation and public policies, plans, and social programs is a growing initiative in response to social demands. This is not merely about addressing women's needs, but primarily about the structurally unequal landscape between men and women, with the aim of building solutions to achieve equality between the two groups.

In this sense, the situation in criminal proceedings could not be different. The importance of a gender perspective in criminal proceedings lies in ensuring that all parties involved are treated equally and without discrimination. This means that judges, prosecutors, lawyers, and public defenders must be aware of how gender stereotypes can influence their decisions and how this can affect justice. 

Furthermore, it is important to always consider how gender inequalities can affect a person's ability to obtain justice and protection, especially in cases such as gender-based violence or sexual crimes.

The Impact of a Lack of Gender Perspective in Criminal Proceedings

The impact of a gender perspective on the criminal process can be felt in several areas. For example, when considering provisional release, judges may take into account the caregiving responsibilities assigned to women, which often prevent them from attending hearings or complying with restrictive measures. 

When judging cases of domestic violence, it is important to consider the power imbalance that often exists between men and women in abusive relationships, and how this can affect a woman's ability to leave her abuser or seek legal protection.

With regard to sexual crimes, a gender perspective can help ensure that the victim is not revictimized or blamed for what happened. Often, victims of sexual crimes are treated inappropriately, based on gender stereotypes, which leads to less credibility given to their reports.

The consequences of not adopting a gender perspective are diverse, such as the maintenance and affirmation of gender stereotypes, the creation of scattered laws that do not address reality, the relativization of crimes committed against women in favor of circumstantial situations, and the lack of value given to the victim's testimony. 

In general, this leads to a disregard for fundamental human rights, as well as weakening the enforcement of laws. With an appropriate gender perspective, these stereotypes can be rejected and the judgments made will be fairer.

How can lawyers and legal professionals improve their performance?

Lawyers and legal professionals involved have a responsibility to ensure that all individuals are treated fairly and equally within the criminal justice system, regardless of gender. To act with a gender perspective in criminal proceedings, it is important that lawyers and legal professionals are aware of the specific needs of each individual.

Furthermore, aiming for this objective, the Code of Criminal Procedure stipulates that in the instruction and judgment hearing, and especially in those investigating crimes against sexual dignity, all parties and other procedural subjects present at the act must safeguard the physical and psychological integrity of the victim, under penalty of civil, criminal and administrative liability (Article 400-A of the CPP). It is forbidden to comment on circumstances or elements unrelated to the facts under investigation in the case file; and to use language, information or material that offends the dignity of the victim or witnesses.

In this regard, lawyers and legal professionals should receive training and awareness about gender issues and biases that may occur in criminal proceedings. This can help them identify and deal with situations where gender equality is not respected.

Examples of areas requiring skilled professionals with a gender perspective include: 

• Many victims and witnesses are women, and they can be particularly vulnerable in criminal proceedings. Lawyers must ensure that these individuals are protected and treated with dignity throughout the process.

• A gender perspective should be considered in pre-trial investigations and the trial of criminal cases. This should be demanded by the defense, as it can be important for identifying potential gender stereotypes in order to advocate for a fairer trial.

• Women represent a significant proportion of the prison population, but often do not receive adequate treatment within the prison system. Lawyers must ensure that women receive proper medical care, that their hygiene needs are met, and that they are protected from violence and potential harassment.

Finally, lawyers and legal professionals must act with a gender perspective in criminal proceedings, ensuring that the specific needs of each individual are recognized and addressed appropriately. 

References:

Art. 400-A CPP

FERREIRA, Maria Mary. Female representation and the construction of democracy in Brazil. Coimbra: CES, 2004.

GONÇALVES, TA. Women's human rights and the Inter-American Commission on Human Rights: an analysis of cases admitted between 1970 and 2008. Dissertation (Post-Graduate Program in Human Rights, Faculty of Law, University of São Paulo) – USP. São Paulo, p. 267. 2011.

UN Women. United Nations and Brazilian government recommend national guidelines for investigation, prosecution and trial procedures for femicide crimes. April, 2016.