In August 2006, a statute against domestic and gender violence (the “Maria da Penha Law”) went into effect in Brazil. The result of a four-year negotiation between Congress and a consortium of NGOs and activists, the statute was a turning point for how the Brazilian legal system treats women and gender-based violence. However, the new law remains controversial due to its emphasis on incarceration. In her talk, Machado will discuss the law and its application, exploring its ambiguous results.
Marta Rodriguez de Assis Machado is a professor of Law at the Fundação Getulio Vargas in São Paulo and a researcher at the Centro Brasileiro de Análise e Planejamento (CEBRAP). Her research focuses on the increase in criminalization and incarceration in Brazil. She is currently a visiting scholar at CLAS.
Brazil and the Paradox of Gender Justice
By Mimi Kim
Brazil was a relative latecomer to what has become an international movement to recognize domestic violence as a crime. The 2006 passage of the Maria da Penha Law — named after a Brazilian woman rendered paraplegic by repeated beatings and two attempted murders by her husband, who wasn’t found guilty for 20 years — marks a significant entry into the modern era of lawmaking regarding gender-based violence. However, according to Brazilian legal scholar Marta Rodriguez de Assis Machado, advances in lawmaking can come with paradoxical outcomes.
First interested in Brazil’s Black Movement in the 1960s and what she views as its vexing reliance upon criminal remedies for a movement with a progressive civil rights agenda, Machado later turned towards feminist social movements to investigate their similar turn towards demands for criminal penalties as a means to secure justice. A professor of law at São Paulo’s Fundação Getulio Vargas, Machado has continued to investigate the tensions between the progressive aims of rights-based law and the conservative trend towards criminalization and increased criminal penalties.
In her CLAS talk, Machado prefaced her discussion of the 2006 law with an overview of Brazil’s recent recognition of the seriousness of gender-based violence. Riding the wave of international feminist movements that began with the 1975 Conference for Women in Mexico City and the subsequent signing of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1982 and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women in Belém do Pará in 1994, feminists gained mounting leverage to push for a national agenda on violence against women. The mobilization of women in Brazil led to the formation of the first institutions, and their demands eventually led to the 2006 federal legislation.
During the 1980s, Brazil inaugurated its first State Council for Women’s Rights as well as its first specialized police station for women, both in São Paulo. This specialized police station set the stage for institutional innovations aimed to strike against the nation’s ubiquitous culture of impunity. During what Machado deems the “decade of the specialized police station,” municipalities across the country moved slowly to improve an uneven, and often dismal, police response to crimes against women.
The legal precedent for the 2006 law is Brazil’s 9.099/1995 law that instituted special criminal courts for cases of “minor offensive potential,” the umbrella under which offenses such as domestic violence were considered. Established as a pathway to legal alternatives to incarceration, the law encouraged reconciliation between offender and victim, negotiations for lowered penalties facilitated by the prosecutor, and suspension of the criminal case under certain conditions. The result was that domestic violence at all levels of lethality often fell below the threshold of police concern. Women were advised to return home; charges were routinely dropped; and penalties, if mandated, were trivial. The “basket of goods,” an insignificant token paid by abusers to local charities as penance for repeated and often brutal violence, came to represent Brazil’s disregard for the rights and safety of women.
Maria da Penha, and the egregious breach of justice she suffered, became a symbol for the revitalized feminist movement. When da Penha’s husband was not brought to justice, an NGO filed a case against Brazil to the Inter-American Commission on Human Rights, which found Brazil negligent, spurring national outrage and demands for change. Encouraged by this success, the 2002 Conference of Brazilian Women created a feminist platform salient in the election leading to the presidential accession of Luiz Inácio Lula da Silva that same year. Two years later, the National Conference of Public Policies for Women — the creation of a consortium of feminist organizations — and a newly designated Secretariat for Women developed and promoted the Maria da Penha Law, which passed with President Lula’s support in 2006.
According to Machado, debates leading up the law’s passage and the subsequent tensions it has engendered embody the contradictions between the progressive aspects of the law and its firm embrace of a criminal response to violence. Indeed, the law includes an unprecedented and liberalizing definition of family as a “community formed by individuals who are or consider themselves to be related”; formal acknowledgement of same-sex relationships; an enlarged definition of domestic violence beyond physical aggression; and a comprehensive package of measures designed to protect abused women including shelters as well as psychological and health assistance.
However, the law also rejects any and all alternative measures represented by the maligned 1995 law, affirming criminalization as the most important means for confronting violence. The statute includes the automatic criminalization of acts involving physical injury regardless of the victim’s wishes; prison for those committing flagrant acts of violence and as a preventive measure; and a ban on any form of pecuniary sentencing.
In fact, Machado argues, the law has resulted in diminished outcomes for women subject to domestic violence. She claims, rather, that the rigid instruments promoted by this new law deter socio-legal policies that may better reach the goals that the movement seeks to achieve. Part of the problem is that a stubbornly patriarchal society and legal system may be even less likely to offer protections to women if they automatically lead to the incarceration of abusers. Indeed, some have argued that the new law “discriminates against men,” and both men and women working in the legal system appear hesitant to implement it, relying instead on interpretations of the 1995 law.
Other arguments against the Maria da Penha Law follow lines similar to U.S. critiques against mandatory arrest and other enhanced criminal instruments developed over the past 40 years in the struggle against gender-based violence. Violence against women is a complex socio-politico-economic problem that requires complex remedies beyond criminal penalties, and incarceration ignores other factors that may actually improve outcomes for women. Mandated arrest and criminal penalties take away the agency and self-determination of the victims of domestic violence, and disallowing the suspension of the criminal process removes a sometimes powerful and effective point of leverage for violence victims, prosecutors, and judges.
On paper, the Maria da Penha law provides what Machado refers to as quintessential “modern” institutional reforms that appear helpful for Brazil’s women. The promise of integrated and efficient Special Courts of Family and Domestic Violence resulted from social movement pressures. Expanded definitions of family, recognition of same-gender partnerships, and new protections for battered women from employer discrimination are among the impressive advances represented in this legislation. The reality, however, is sobering. The weakness of Brazil’s institutional infrastructure, the lack of trained personnel or policies that can reliably support these reforms, and the rigidity of the criminal response, widely rejected and dismissed in practice, may actually be worsening conditions for women in Brazil.
Machado recognizes that years of impunity under the 1995 law symbolized by the loathed “basket of goods” punishment and the failure of Maria da Penha herself to receive any semblance of justice for 20 years may explain feminists’ insistence that anything resembling alternative punishment must be patently rejected. She encourages a reassessment of this position and a return to a broader reformulation of alternatives. Possibilities for reconciliation, prosecutorial negotiations, and the ability to suspend criminal processes may be useful legal instruments in able hands and within effective institutions. Perhaps more important is the recognition that violence against women is a complex issue that requires a wide scope of practices and policies rather than a criminalization-only response. Such an argument is not easy to make in a climate that associates this critique with patriarchal efforts to dismiss challenges to violence against women altogether. Indeed, as Machado recognized with Brazil’s Black Movement, the coupling of rights-based movements with demands for increased criminalization appears to be emblematic of social movement strategies in the context of the global expansion of incarceration. Those who choose more nuanced pathways within the vast chasm between impunity and lockdown have a daunting but important task ahead.
Marta Rodriguez de Assis Machado is a professor of Law at the Fundação Getulio Getulio Vargas in São Paulo and a researcher at the Brazilian Center of Analysis and Planning (CEBRAP). She was a visiting scholar at CLAS in 2011-12.
Mimi Kim is a graduate student in the School of Social Welfare at UC Berkeley.