By PATRICIA MAEDA e JORGE LUIZ SOUTO MAIOR*
Black lives matter! And impunity for crimes committed against the integrity of black citizens, including by the State itself, is a decisive factor in denying this essential and mandatory recognition
Miguel Otávio Santana da Silva was five years old. His mother, Mirtes Renata Souza, is a maid and had to take Miguel to work, as the continuity of her work was required even during the pandemic and during this period, day care centers are closed. At work, he went out to take his bosses' dog, Sari Corte Real and Sérgio Hacker (mayor of Tamandaré / PE for PSB), for a walk. Miguel was in the care of his boss, in the apartment on the fifth floor of a luxury building in Recife/PE, part of the complex known as “Twin Towers”. And while the mother was taking care of the dog's physiological needs, Miguel fell from the ninth floor of the building and died.
It is not up to us, within the scope of this text, to go down to the minutiae of the facts, examine conduct, assess culpability and set penalties. Not that this is not important, quite the contrary. It is necessary that this be done, for the due punishment of all the culprits, because deaths like Miguel's can never again go unpunished. Black lives matter! And impunity for crimes committed against the integrity of black citizens, including by the State itself, is a decisive factor in the denial of this essential and mandatory recognition.
Our purpose is to go further and propose reflections on what happened in order to visualize the various determinants that appear in the fact and the innumerable historical responsibilities, of multiple characters, for what happened. The need to arrive at the attribution of blame and the punishment of the direct culprits cannot serve to generate a false sense of expanded justice by erasing and, with this, preserving all the social, cultural, economic, political and legal conditions that are reflected in the situation and keeping so many other “culprits” unpunished.
So let's start by talking about equal rights for domestic workers.
Until today, 2020, we have not been able to say, in all letters and with practical consequences, that domestic servants (who are, in fact, entirely women and, in the vast majority, black women) have equal rights to those of all other male and female employees. The constituents of 1987 did not do this and, since always, congressmen, government officials, jurists and magistrates, who, in this matter, position themselves as authentic employers of domestic servants for the defense of their direct interests, denying full legal subjectivity to who renders them a service, a service which, by the way, is only now, in a somewhat cynical way, presented to them as essential.
The arguments are multiple and elusive and ended up being reinforced when, in the wake of the issue of ILO Convention 189, dated 15/11/11, the issue of raising the rights of domestic workers was put on the agenda. The organized resistance of a large part of society was present and was intensely reproduced in the mainstream media, which insisted on showing the suffering that employers and domestic employers would have to guarantee all those rights, which, moreover, as has always been said , were unjustified, since in that type of relationship a work relationship was not formed, but a family relationship. “The maid is a member of the family”, they argued.
Even so, on 2/4/13, Constitutional Amendment n. 72, which established, albeit merely formally, this equality. The arguments against the elevation of rights (it should be remembered that even the meager existing rights were never effectively fulfilled) were presented in an even stronger and more articulated way and the result was that, the slavery logic prevailing, in 2015, a Complementary Law (n. 150), published on June 2 (exactly on the day of Miguel's death), came to supersede the Constitutional Amendment and Convention 189 of the ILO, denying this equality and this was done in the face of generalized legal, social and political acceptance.
The legal precariousness of the domestic employment relationship, the denial of the union organization of the category of domestic workers (with a concrete negotiation possibility), the removal of the State inspection bodies regarding the fulfillment of the labor rights of these professionals and the consequent consecration (and even the increase) of the formation of a relationship of power and submission constituted the social and legal conformations that, put into practice, prevented Mirtes from refusing to go to work in a pandemic time and still having to take his son Miguel to work.
These are some of the legal realities reflected in the case and which, therefore, attract, at the very least, the responsibility of all those who, historically, “fought”, in conscious and organized action (having not been, therefore, “mere omission”), to deny domestic workers a minimum condition of citizenship in labor relations.
This social immobility and even the intensification of labor exploitation in recent years have had a decisive impact on the lives of so many children like Miguel. The precariousness of life is also a hallmark of black children's childhood, barring any expectations for the future. And, in addition to the material conditions shown in the statistics (access to health and education, housing, basic sanitation), the fact is that black children and adolescents do not have their own needs and interests. ensured by society and the Brazilian State, even though, formally, the Federal Constitution, which also condemns all forms of prejudice and discrimination (art. 3, IV), has promised to guarantee to all, without distinction, “the right to life, to health, food, education, leisure, professionalization, culture, dignity, respect, freedom and family and community coexistence, in addition to putting them safe from all forms of negligence, discrimination, exploitation, violence , cruelty and oppression”.
The Federal Constitution, in terms of social assistance, also promises to protect the family (art. 203, CF), given the social relevance attributed to it. But when it comes to the excluded, in a concrete way, even the family entity is denied them.
We develop a naturalized discrimination against black children and adolescents when, for example, despite the right to full protection, they are “allowed” to do small jobs free of charge, under the excuse of promoting help and anchored in the argument that “ it is better to be working than stealing”.
And so, point by point, day after day, for years and decades, opportunities for integration, preparation, leisure and study for millions of children like Miguel were being eliminated, who, when not integrated into a circumstantial situation of visibility socially, carry the weight of stereotypes (“pickup”, “rebel”, “incapable”) and, therefore, are not seen as people in development, who deserve priority and protection, as foreseen in the Statute of the Child and Adolescent.
Because the Federal Constitution was not fully enforced and all the rules of the Child and Adolescent Statute were not applied, many hands left their marks on Miguel's death (as well as those of Ágatha Félix, João Pedro Matos Pinto and so many other black and black children and adolescents).
And all these responsibilities need to be investigated, so that we can prevent tragedies like these from continuing to be part of the daily lives of millions of people in Brazil, subjected to persistent structural racism, even if the Constitution declares that the practice of racism is a non-bailable and imprescriptible crime, subjecting the offender to the penalty of imprisonment (art. 5, XLII), and this, above all, by the legal tactic of referring the fact of aggression of an individual nature to the criminal type of racial injury (art. 140, paragraph 3, of the Penal Code) , which has penalties that are provided for racism, as provided for in Law n. 7.716, of January 5, 1989.
Let us then think about the other cultural aspects (which are also legal, political, economic and social) present in the case.
In this regard, the first impulse is to ask yourself “who would leave a five-year-old child alone in an elevator?”
If we think, as we are proposing, that the issue is not just about the lack of humanity of this “mistress” specifically, we need to broaden the horizon of analysis of the tragedy, seen, even, as a portrait of a broader and more stubborn tragedy.
Context of the tragedy
The State of Pernambuco has one of the highest numbers of cases of infection and deaths from COVID-19 and a quarantine (“lockdown”) was instituted between May 16 and 31, which was relativized so that domestic workers and caregivers continued to work in homes whose employers performed essential activities or were part of a risk group.
The main measure recommended by the World Health Organization to contain the COVID-19 pandemic is social isolation. Social isolation is therefore a public health measure and should not be a class luxury, but in practice it is only feasible if there is the possibility of improvised remote work or the guarantee of income for workers to stay at home. Ironically, in the society that proclaims Revolution 4.0, the great measures to contain the pandemic are to stay at home and wash your hands. Nothing very technological, but not really easy to implement. And it is in everyday life that social inequalities come to the fore. A large part of the population has no formal jobs, living on precarious and intermittent jobs, without which the great risk becomes that of dying of hunger. How to do social isolation without guaranteed income? The housing deficit makes social isolation impossible for another (or the same) portion of the population, which also lacks access to water and basic sanitation. How to wash your hands without running clean water?
It is true that the pandemic highlights the centrality of social reproduction for the maintenance of life, above all because, forced (or privileged to) stay at home, a part of society begins to see that it is not possible to live without preparing food, cleaning the house, washing clothes and taking care of children, the elderly and the sick. If reproductive work is essential, not having the possibility of maintaining life without its execution, the fact is that, in general, it can be assumed by the residents of the house to provide the right to social isolation for domestic workers[I], who also have their needs guided by the current situation (closed day care centers and schools, sudden suspension of the support network due to isolation, etc.).
Miguel's death took place on the day that would "celebrate" the five years of Complementary Law n. 150/2015, which regulates domestic work, but maintains legal inequality. Since the enactment of the CLT, in 1943, domestic workers have struggled to overcome the social invisibility of their work, marked by the intersectionality of class, gender and racial oppression, seeking recognition of the never achieved equality of rights with other professional categories.
In the midst of the serious health crisis, domestic work and paid care came out of the condition of being invisible to be classified as an essential activity in some states, such as Pernambuco and Pará, to guarantee the continuity of the provision of services by workers, mostly black women. , despite the quarantine instituted in municipalities with alarming contagion curves such as Recife and Belém. This fallacious recognition of the essentiality of paid domestic work is nothing more than an expression of the coloniality of power and being, in the sense of mirroring a classist, sexist and racist society with slave-owning colonial roots.
We are aware of the burden on women due to the overlapping of physical, mental and psychological loads in the context of the pandemic and confinement. We understand that it is an opportunity to rethink social reproduction and the sexual division of labor. At the same time, we cannot ignore that the pandemic situation puts life itself at risk. And, if the coronavirus is not selective, hitting indistinctly those who stand in its way, we cannot say the same about the effects of the pandemic, which hit the most vulnerable population most mercilessly, observing the social markers of class, gender, race, age. , health condition, etc.
Despite all this, the article in G1 reports that Miguel, Mirtes and their mother (and Miguel's grandmother) were in contact with their boss infected with COVID-19 and effectively contracted the disease, fortunately with mild symptoms. Miguel's death, however, goes beyond the issue of public health and the invisibility of reproductive work.
Griefable life and necropolitics
Based on mourning, philosopher Judith Butler sees a hierarchization of life: the humanity of the Other lies in their ability to be mourned, which shapes the issues of precariousness and human vulnerability. According to her, “lives are supported and maintained differently, and there are radically different ways in which human physical vulnerability is distributed around the world. Certain lives will be highly protected and the annulment of their claims to inviolability will be enough to mobilize the forces of war. Other lives will not find such swift and fierce support and will not even qualify as “bereaved.”[ii]. Thus, the deaths of young black people in the periphery, if invoked as such, without faces or names, do not go through mourning. The absence of mourning is the end of a precarious life.
In a way, it seems that it is this difference that Mirtes, Miguel's mother, wants to talk about, imagining what it would be like if the boss's daughter were the victim of her omission in the duty of care: “If it were me, my face would be stamped, as I've seen several cases on television. My name would be plastered and my face would be in all media. But hers can't be in the media, it can't be publicized".
The hierarchization of lives and people, based on a logic of gender and race, still organizes Brazilian society and the State. It is the persistence of the coloniality of power, which permeates the historically established inequalities, against which the confrontation begins by revealing them, denaturalizing them. It means admitting that the legal subjectivity of every natural person or the dignity of the human person, the express foundation of our Republic, is not realized in its fullness on a daily basis, since society is divided between humans and non-humans.
The Cameroonian philosopher Achille Mbembe developed the term necropolitics to rescue Michel Foucault's idea of biopower, according to which the sovereignty of national States is expressed in the power to decide “to make live or let die”. Necropolitics goes further to say who can live and who must die, in an exercise of violence and the power of death.[iii]. In neoliberalism, the State decides on the bodies and lives of “superfluous masses”, subjugating life to the power of death, as a way of managing society. “Dignified” lives are preserved and protected. Precarious lives are disposable. Or in the words of Rubens Casara: “In the Post-Democratic State, what matters is to ensure the interests of the market and the free circulation of capital and goods, with the control or even the exclusion of dysfunctional individuals, devoid of use value or political enemies.”[iv] In this context, the poor and mostly black population is seen as an “internal enemy” by the necropolitical State.
Only from a place of social privilege, health security and full access to health resources is it possible to think about relaxing isolation rules, resuming commercial activity and denying the risk of death to which most of the population is exposed. More than that, it is by observing the logic of disposability of certain lives in favor of the market (more than a natural given, as if this were a subject) that the State operates. Mismanagement in the face of a serious health crisis, with its commands and excesses, is not ignorance, but a deliberate way of managing the undesirables.
From state denialism to the work relationship
The Brazilian dystopia, marked by social Darwinism disguised as denialism, is not the work of a malevolent mind. We cannot make the mistake of personalizing the evil of this racist and sexist society; this is only possible because it conforms to an elite that does not give up its privileges and pretends not to see the Other.
The elite, as well as positions of power in institutions, have a face: they are white men, adults, heteronormative and self-proclaimed religious, which marks their worldview and interests. Whiteness and masculinity are hegemonic historical and social constructions in places of power and decision-making and inform the neoliberal ideology. This perspective from the top of the social pyramid invokes a fallacious neutrality, assuming its point of view as universal, objective, rational and civilized (like the Eurocentric colonizer), and demeaning the Other as being partial, subjective, irrational and uncivilized . Furthermore, stereotyping leads to labeling the Other as lazy, ignorant, violent, resistant and dangerous. With this construction of its subjectivity, the elite manages to look at the working class and not see it; looking at the domestic worker and seeing her as mere family equipment; look at the maid's son and see him as a nuisance.
Anyone who identifies with the neoliberal ideology watches, without any concern, the dismantling of labor laws in the midst of a state of calamity, when the priority of human life should demand the reinforcement of the fundamental rights and guarantees provided for in the Federal Constitution and not their “flexibilization” ( euphemism for reduction), and adheres easily to authoritative discourse. He sees as natural the inclusion of the maid in the payroll of the city hall managed by the boss.
In this rationale, on the one hand, part of the privileged class (self-defined as meritocrats) protests against social isolation as a restriction of their freedom to come and go and an obstacle to economic freedom; on the other hand, it is seen as natural for the worker to be called upon through an application to make home deliveries for a meager salary and without due protection and the worker taking care of the bosses' dog while no one takes care of their child.
As can be seen, in order to face the suffering of Miguel's family with due dignity, we need to go beyond the punishment of the direct perpetrators and put ourselves on trial with the self-condemnation of, at the very least, committing ourselves to promoting the necessary changes so that black lives in Brazil effectively matter!
As Ana Cristina Santos warns:
“Overcoming racism will only be possible if we are able to recognize privileges, to review customary attitudes, but mainly, it depends on our ability to think together about issues such as economy and race, understanding that class has color and that this is an impossible structural relationship to be analyzed from the point of view of fragmentation.
The story of Mirtes, beyond the tragedy and horror that punctuated her Blackout Tuesday, will remain naturalized and anonymous as long as we insist on looking at this fact as the story of a woman and not that of thousands of women, as an extraordinary piece of news in the newspaper, as long as we think that punishing one person, fulfilling our fair and seasonal desire for justice, will solve this searing pain that rests in the chest of black people day after day, through the centuries.”[v]
Faced with this concrete situation, the question we should ask ourselves is: if it weren't for premature death, what sufferings would still be reserved for Miguel in the Brazilian social reality?
When we face this issue, we are forced to realize that much still needs to be done to change this tragic reality. We need, at least, to recognize that the empty promises of a better life for everyone have already been made in the laws and in the Federal Constitution. It is up to us now, once and for all, to demand and do our part so that these promises come to pass. And this is the time!
* Patricia Maeda is a doctoral student in labor law at the Faculty of Law of USP.
*Jorge Souto Maior is a professor of labor law at the Faculty of Law at USP.
Notes
[I] On the need to ensure social isolation for domestic and care workers, see https://www.cartacapital.com.br/blogs/sororidade-em-pauta/na-pandemia-por-que-servico-domestico-e-classificado-como-essencial/
[ii] BUTLER, Judith. precarious life: The powers of mourning and violence. Belo Horizonte: Authentic, 2019.
[iii] MBEMBE, Achilles. Necropolitical: biopower, sovereignty, state of exception, politics of death. 3rd ed. São Paulo: n-1editions, 2018.
[iv] CASARA, Rubens. Post-Democratic State: neo-obscurantism and management of undesirables. Rio: Civilização Brasileira, 2017. p. 133.
[v]. SANTOS, Ana Cristina. Miguel's death and the invisibility of the many Mirtes in Brazil. Viomundo:
