The Maria da Penha law completes 15 years

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By LOURDES M. BANDEIRA

It is innovative in the concept of women's human rights by incorporating the dimensions of physical, sexual, psychological, patrimonial and moral violence

What do we celebrate...

To Lei no. 11.340/2006 was signed by President Luís Inácio Lula da Silva at the Planalto Palace in the presence of Maria da Penha Maia Fernandes, a biochemistry pharmacist graduated from the Federal University of Ceará in 1966. She was the victim of a double attempt at feminicide by her husband , in 1983; since then she has been paraplegic. On the occasion, in a political gesture, the president stated: “from now on this law will be called the Maria da Penha Law (LMP)”. Perpetuated as a Brazilian symbol of the fight against violence that affects women. It has been in effect since its approval on August 07, 2006 and has just completed 15 years.

Fruit of a long collective battle of Brazilian feminists, since the 1970s, it was configured in the constitution of the 'LMP Consortium' by representing a new political-legal framework against domestic and family violence. It removes the phenomenon of invisibility, instigating the idea that it should no longer be seen as naturalized or tolerated. Society, although still marked by structural sexism and racism, has come to realize that the phenomenon of violence against women constitutes the violation of their fundamental human rights, and is not just about interpersonal conflicts between members of a couple. The LMP establishes a paradigm shift promoted by legislation, which changed the course of protecting women in one of the countries with the highest record of gender violence in the world.

It is innovative in incorporating the dimensions of physical, sexual, psychological, patrimonial and moral violence into the concept, as women's human rights, thus breaking with the patterns of domination. It was created in accordance with the Federal Constitution of 1988 (art. 226, § 8°) and with the international treaty ratified by the Brazilian State established by the Convention of Belém do Pará, 1994. It is the best known law in Brazil, and its text has inspired the creation of similar laws, especially in the context of Latin America. And tax, by following the guidelines in accordance with the Declaration on the Elimination of Violence against Women, Resolution of the General Assembly of the United Nations (1993), which states: “Violence against women is a manifestation of historically unequal power relations between men and women that have led to domination of and discrimination against women by men and impeded their full advancement”.

In addition, the LMP is characterized by its democratic, multidisciplinary and pedagogical genesis, although it is centered on the existing penal regulations, it does not fail to show the broadening of the understanding of the phenomenon of violence against women [and gender], in addition to being constitute punitive legislation. It is centered on the focus on 'preventing, confronting and eradicating' violence against women, in addition to demanding public policy actions from the State. Such a paradigm required the creation of a network of integrated services and public equipment for the reception of women in situations of violence.

When sanctioned, the law determined the creation of the Courts of Domestic and Family Violence against Women (JVDFM). He specified the types of domestic violence: in addition to physical and sexual aggression, other expressions of offenses, threats, attempts to control female behavior, such as in social media, for example, make the list. The LMP also innovates by breaking with common sense, by highlighting, in its text, the reference to the battered woman not as a 'victim', but naming her – “woman in situation of domestic and family violence”. Furthermore, it is a 'consensus' for the corpus legal that if a trans or transvestite woman is attacked, she can denounce and be supported by the Maria da Penha Law. There are no restrictions regarding sexual orientation, as lesbian women can also ask for protective measures against their girlfriends, wives or when they are attacked by other family members.

The LMP, when amending the Penal Code, introduced paragraph 9 of Article 129, in which it highlights that aggressors of women in the domestic or family sphere are arrested in flagrante delicto or have their preventive detention decreed. With this, it modified the condition of aggressors not to 'benefit' from the punishment of alternative sentences, above all – by basic basket, as it was stated in Law 9099/1995, whose violence against women was considered as a 'crime of lesser potential offensive'.

Since it was sanctioned, it has regulated emergency measures to prevent and guarantee the physical and moral integrity of women by establishing devices such as 'urgent protective measures' (UPM), which prohibit the aggressor from approaching the victim, at risk of arrest. However, the MPU have not been enough to inhibit crimes and, unfortunately, it is still not possible to envision a better future for many women who live daily under the fear of threats and domestic violence, manifested by their partners.

The importance of the LMP, which began to name the phenomenon of violence, evidencing its legitimacy, made it possible to open up the understanding of the typification of the crime of femicide. This was configured as the crime of killing a woman due to her 'sex condition', which can also be characterized as a crime of passion, of sex discrimination in the family environment, among other situations provided for in Art. 1st § 2nd of Law 13.104/15. I highlight: “Amends art. 121 of Decree-Law No. 2.848, of the Penal Code, to provide for femicide as a qualifying circumstance for the crime of homicide, and art. 1 of Law nº 8.072, of July 25, 1990, to include feminicide in the list of heinous crimes. The crime of femicide is defined as: “[…] § 2 A- It is considered that there are reasons for being female when the crime involves: I – domestic and family violence; II – contempt or discrimination against the condition of woman”.

Many situations are predicted for the crime of femicide to occur, as a rule, through their partners or ex-partners who, for different reasons, kill their companions, instigated by feelings of misogyny, hatred, possession, situation of persistent jealousy, nonconformity with the end of the relationship, (suspected) betrayal; or even when the woman behaves autonomously or independently, whether in relation to her work and/or studies, outside the marital home, among other reasons.

The LMP gains new contours and developments, with the formalization of the criminal type in relation to psychological violence against women (Law 14.188/2021), less evident and more subtle, configured by common sense: “you are going crazy”….

Undoubtedly, there were and are many gains brought by the LMP to celebrate, whose prominence can be evidenced in the words of the UN when emphasizing that the Maria da Penha Law is one of the three most advanced laws in the world - according to the United Nations Development Fund for Women (Unifem, 2006) – among 90 countries that have legislation on combating violence against women, by breaking with the social pattern of impunity for aggressors.

Challenges to be faced…

Characterized as a specific legislation to combat violence against women, the LMP has shown little effectiveness, since the numbers reveal the sad reality of Brazilian girls, young people and women who face situations of rape, harassment, threats and even even violent death being configured in the crimes of feminicide for the simple fact of being a woman.

According to information released by the Brazilian Public Security Forum (2021), each year the data become more alarming in relation to the violent deaths of women, most of which affect black women. In 2020, in Brazil, 3.913 crimes against women were recorded, and of these, 1.350 were classified as crimes of femicide; 60.926 were cases of sexual violence, and another 44 situations of rape of vulnerable people (involving girls between the ages of 9 and 13). As evidenced, the highest incidence of death falls on black women, a situation that reaffirms the presence and persistence of structural and institutional racism in our society, reaching the corpus professionals from different private sectors, such as government and legal institutions.

Present in everyday sociability, such characteristics reaffirm the vulnerable racial condition of exclusion of black and poor women, whether in relation to access to justice or in relation to MPU, since statistics indicate a higher concentration of these MPU in white women. This situation attested by the serious indicators of social inequality is 'reinforced' by the absence of black female bodies in the justice system. Therefore, one of the main challenges is to face the racism and sexism imposed on the effectiveness of the LMP.

Such a situation denotes the strong presence of the sexist and racist 'contemporary patriarchy', as well as the implementation of family policies, which during the Covid-19 conjuncture, evidence the intensification and potentialization of gender violence. An avalanche of complaints is identified about situations of violence against girls, young people and women, from domestic violence (physical and sexual) to situations of femicide crimes. In general, the argument has been the aggravation of living in isolation, with many women being confined together with aggressive partners, for long periods, who exercise greater control over them. Fragile reporting strategies, when not absent, end up configuring the prevalent feeling of exclusion and impunity, especially for women who live outside urban contexts, in the so-called peripheries.

In the same direction, it should be noted that the platforms of Ligue 180 and Disque 100, during the year 2020, indicated approximately 105 thousand complaints of female violence registered, according to the Ministry of Women, Family and Human Rights. The data may be underestimated, but there are no other mechanisms or public facilities to assess the phenomenon's potential.

In addition to the persistence and power of the recorded data, there are other somber scenarios that challenge the LMP: one of the biggest, undoubtedly, concerns its questioning, since, currently, there are approximately 300 bills that propose changes – direct and/or indirect in its original text. It is worth remembering that in the National Congress the LMP became a 'political capital' of disputes between conservatives and fundamentalists versus those who seek to remain faithful to the objectives of the law, namely: the challenge of protecting and ensuring the lives of women who are living in situations of risk of violence. The biggest fear is that – although all the articles originally envisaged are not there by chance – the LMP cannot be changed without counting on the participation of the most interested parties, that is, the collective of women. Therefore, the LMP cannot be treated as a 'game' or reduced to a simple political 'dispute'.

Another challenge points out that each year, the LMP has been losing priority, strength and budgetary resources as it is being relegated to the background, in terms of public policies by the federal government, and by extension with a weakening that has repercussions in other state and municipal instances. According to preliminary information, from the Institute of Socioeconomic Studies (INESC), and, extended to UN Women (2020), report that almost 50% of the assistance services for battered women have already been deactivated (DEAMs, Reference Center, Shelter Houses, Secretariats and Councils, among other equipment). This weakening falls on the protection and reception networks of women in situations of violence, indicating that the Brazilian State has not shown urgency to make the LMP effective.

Undoubtedly, there are challenges related to not investing in the training of public security, justice and health agents, above all, those who did not qualify, did not develop a culture of listening and empathy, not qualifying to listen and give credibility to the women in their trajectories of violence. It is recognizable that there is a lack of qualification, resources, sensitivity and commitment on the part of this corpus of servers. Associated with such insufficiencies, the scarce production of reliable statistical data with assured periodicity can be aggravated, evidencing the monitoring of the PML, which would undoubtedly make it effective.

It is also regretted that the risk of dismantling the LMP may represent, without a doubt, an announced tragedy, as well as the other dismantling in relation to public policies that affect women: indigenous, black, unemployed, poor, rural, gypsy, trans and peripheral, in addition to all others who are in vulnerable situations. It is known that the LMP alone would not change mentalities, but it should guarantee abused women welcome, assistance and protection when denouncing their aggressors.

Thus, the expectation of breaking many of the challenges exposed would be precisely to create mechanisms and strategies to prioritize their strengthening, throughout Brazilian society, similarly to what has been done with the mobilization of the feminist uprising articulated to various organizations in the National Campaign against Crimes of Femicide: Don't even think about killing us, whoever kills a woman kills all humanity. Certainly, all women must have their right to exist, to live with dignity assured, and this is the biggest challenge that represents the LMP.

Another challenge is to seek dialogue between public agents, especially security and the judiciary, to advance in breaking with discrimination and stereotypes that still fall on women in general.

I conclude by recalling that there may be educational campaigns for clarification, information on rights and access, since the following assumption is in the text of the LMP: “Union, States and Municipalities must promote actions that seek to highlight in school curricula, of all levels of education. teaching, for content related to human rights, gender equity, race or ethnicity and the problem of domestic and family violence against women (...) operational integration of the Judiciary, the Public Ministry and the Public Defender's Office with the areas public security, social assistance, health, education, work and housing”.

Such legal provisions, like others, have not been fully implemented with the necessary seriousness and depth in recent years, since resistance, fears and lack of knowledge predominate when approaching and discussing gender relations in society, but above all in school benches, among civil servants /as and in the spheres of corpus legal. Certainly these obstacles constitute one of the greatest challenges to the full implementation of the LMP.

Maintaining a horizon of hope is urgent and necessary, as - living a life without violence is the right of all Brazilian women.

*Lourdes M. Bandeira is a retired full professor at the Department of Sociology at the University of Brasília (UnB).

 

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