First, before directly discussing the new hypotheses for criminalizing gender-based violence, we need to highlight an important fact in Criminal and Criminal Procedure Law.
A gender perspective is a necessary viewpoint for all parties involved in cases of representation of victims of gender-based violence . The "woman's question," as Katherine Bartlett indicates, must be asked at each new stage of the investigation, instruction, or decision-making process in criminal proceedings.
Above all, it is important to point out that there is much room for progress in the debates. Especially after 2005, several new hypotheses for the criminalization of gender violence in Criminal and Criminal Procedure Law have emerged in Brazil.
For example, the "first reform of sexual crimes" or the changes in the naming of the legal good "sexual dignity." In addition, there are also recently created criminal offenses, such as "stalking" and threats based on gender issues (Article 147-B of the Penal Code).
These debates are essential for reflecting on the meanings of these criminalizations and for discussing public policies with a gender perspective . These discussions are important for creating strategies to prevent further violence and for more proportionate approaches to holding perpetrators accountable.
To delve deeper into gender issues and Criminal Law , Professor Carolina Costa, a lawyer specializing in representing women, organized a mini-course on the subject at IDP Online.
This mini-course, taught exclusively by women, covered crucial points regarding criminal policy and gender-based violence in Brazil . Check out the insights on the hypotheses for criminalizing gender-based violence in Brazil!
Criminal policy with a gender perspective
We know how much female representation in the political and legislative fields gains strength, especially when gender parity is achieved. This allows us to advance the recognition of women's rights in Brazil, particularly in the area of public policy.
However, in Brazil, the representation of women, especially Black and Indigenous women, in the National Congress is low, which directly impacts women's rights. The "Charter of Brazilian Women," addressed to the National Constituent Assembly, still has points that have not been implemented normatively or in terms of public policy.
In the legislative process, in addition to the low representation of women (white, black, and indigenous) in the National Congress, it is noticeable that many discussions do not consider the demands of women's movements, such as human rights organizations. Therefore, it is necessary to encourage greater social participation.
In this way, Carolina Costa highlights the importance of thinking about criminal policy as a public policy and following a data-driven planning agenda.
In the case of the Maria da Penha Law, for example, it has already been in effect for 15 years, which implies a multiplicity of data, evaluations, and reflections from actors in the criminal justice system and the network for combating violence against women.
In other words, to improve the hypotheses for evaluating the legislative process and the laws in force in Brazil, the people involved in the issue should be included in the process – in this case, women, with an intersectional approach.
Recent changes to the Penal Code and the Maria da Penha Law
Since its enactment in 2006, Law No. 11.340 (Maria da Penha Law) remained unchanged for 10 years. However, the law has been amended 8 times in the last 4 years , mainly regarding the classification of the crime and the forms of assistance provided to the victim.
In 2017, Law 13.505/17 established that women in situations of domestic and family violence should preferably be assisted by female police officers and forensic experts.
The following year, Law 13.772/18 recognized the violation of a woman's privacy as domestic and family violence. The unauthorized recording of nudity or sexual acts was also criminalized.
Back in 2019, two regulations established changes to the aforementioned law. One of them, Law 13.827/19, authorized that, in some cases, the judicial or police authority may apply urgent protective measures . Another change came with Law 13.926/19, which made notification about victims with disabilities mandatory.
We can observe that the recent changes reflect the articulation of the current women's caucus in the National Congress . Predominantly composed of white women from middle and upper classes, the representatives hold different political and criminal views among themselves and represent distinct parties.
Budgetary discussions for public policies
Despite the lack of budgetary discussions and the symbolic nature of public policies, populist discourses surrounding gender issues are gaining ground, and expansions are being treated as achievements.
The constant budget cuts to policies aimed at reducing gender inequality over the last 3 years are creating problems that legislative changes, naturally, are not the most appropriate solution.
Fifteen years after its publication, the Maria da Penha Law faces challenges in fulfilling its proactive, preventative, and educational functions. As long as we rely more on the doors of the criminal justice system than on schools for education in human rights and gender, the statistics on femicides and bodily harm will not decrease.
Advocacy strategies
Ultimately, feminist advocacy was crucial to the drafting and approval of the Maria da Penha Law. Civil society organizations, human rights advocates, legal professionals, public security officials, and the Secretariat for Policies for Women (SPM) joined forces to draft the preliminary bill in 2004 and then to monitor the legislative process until the law was approved in 2006.
However, gender-focused litigation has intensified in Brazil, thanks to closer ties between academia and criminal justice system bodies. An interesting example of strategic litigation was the promotion of a public civil action filed by the Gender Unit of the MPDFT (Public Prosecutor's Office of the Federal District and Territories), at the time led by Public Prosecutor Dr. Mariana Távora, in 2020.
The action raised concerns about public policies under the purview of the Executive Branch in the Federal District. It was identified that the lack of planning in these policies led to a reduction in the reach of the protection network for women victims of gender-based violence and, consequently, to an increase in femicides in the Federal District. The action involved an injunction aimed at organizing policies for women in the Federal District.
Advocacy to encourage budget planning and data analysis.
In this case, the importance of budgetary planning became clear. This is because there were not enough plans, goals, or data on occurrences of gender-based violence or femicide to structure and plan public policies to reduce gender inequality in the Federal District.
This action demonstrates that judicialization, when based on evidence and meticulous monitoring of budgetary policies, leads to more effective oversight of public policies.
Each region has its own demands according to class and race . Therefore, it is necessary to define actions based on the evidence from each location . In this way, the ideal is to demand sufficient budget to promote public policies that foster gender equality.
It is precisely through advocacy that, by exposing existing problems and needs and demonstrating, with data and reports, the importance of these issues is highlighted. Only in this way is it possible to influence budgetary planning for the implementation of necessary public policies.
Advocacy broadens the participation and representation of excluded or underrepresented groups in political decision-making processes. Its goal is to ensure that individual and collective rights are guaranteed . In this way, it strengthens the democratization of society itself.
Legislative proposals regarding femicide and gender-based violence.
Bill No. 4.196/2020, currently under discussion in the Senate, aims to make femicide an autonomous criminal offense.
The crime of femicide represents an attack on the very condition of being a woman; that is, it affects all women in society in general. The rates of femicide throughout Brazil demonstrate the need for public policies directly aimed at preventing this type of crime.
In response, the National Congress understood that it would be appropriate to return to the discussion on the criminalization of femicide in the form of an autonomous criminal offense, imprinting a symbolic effect that results in greater social disapproval of the crime.
The proposal does not advance in reducing the deaths of women. Academic work carried out by Ana Paula Portella and Carmen Hein de Campos, for example, demonstrates that the term femicide has already been used in the criminal justice system, following the inclusion of this aggravating circumstance in the crime of homicide in 2015.
The challenges in this field involve the investigation, prosecution, and trial of violent deaths of women from a gender perspective, without revictimization, and with particular emphasis on the actions of assistant prosecutors, who must also act with a gender perspective.
Other hypotheses for criminalizing gender-based violence.
Other hypotheses of criminalization in relation to legal rights linked to gender issues have been included in our legislation. This is the case with sexual harassment, through Law No. 13.718/2018, which classifies as sexual crimes acts that violate the sexual dignity of women.
Regarding sexual crimes, we can highlight Law No. 10.224/2001 – sexual harassment, Law No. 11.106/2005 – crimes against marriage, Law No. 12.015/2009 – crimes against sexual dignity, and Law No. 13.718/2018 – sexual harassment, revenge porn, corrective/collective rape, and changes to criminal proceedings.
Brazil faces many challenges in legislative policy from a gender perspective . Therefore, it is important to reflect on whether the State is inclusive or oppressive towards women, from representation in the National Congress to the enactment of laws. Defending the Democratic Rule of Law includes, from legislative debates onwards, the promotion of gender equality, observing an intersectional perspective.
Conclusion
In short, we need to think about criminal policy from a gender perspective based on representation and "asking for women's rights." This perspective needs to be present in all phases of the legislative process and in the criminal justice system.
Therefore, these are issues that deserve the attention of society in general, in order to avoid the revictimization of women in this context.
If you want to delve deeper into issues of gender violence and specialize in the field, check out our postgraduate program in Criminal Law and Criminal Procedure.
Professor Carolina Costa taught a class on New Hypotheses for the Criminalization of Gender Violence in the mini-course ' Gender Issues and Criminal Law '. As a result, we are publishing this article with her support and permission. Don't forget to register for this mini-course!