By ANTÔNIO DAVID*

Elements for a period diagnosis based on the accusation of sexual harassment against Silvio Almeida

Once the sexual harassment complaint against the now former minister Silvio Almeida was made public, what we saw in the hours that followed was the case turning into a spectacle. As usually happens in similar situations, statements of support for the complainants and for him multiplied on social media, each side carrying the banner of their own unequivocal certainty: guilty and innocent.

The audience was divided — not necessarily in half. Both positions were echoed in the press, especially the first. On top of the alleged harassment, a new event took place: a discursive event. What is its meaning? And to what non-discursive practices is this event substantively linked?

The (not so) subtle passage from presumption to certainty

It is inevitable not to think of equally notorious cases in which the accused was not guilty, as was proven in the end. One such case — the one that is always remembered — is that of Escola Base, which occurred in 1994. There is no doubt that the commotion surrounding this episode had to do with the fact that the alleged victims were children. As is usual in cases like this, everyone — authorities, journalists and the public — was absolutely certain that the accused were guilty. Why would children lie?

This includes the rape accusation against Neymar in 2019: the public was immediately divided between those who supported the player's innocence and those who supported his guilt. After a series of back and forths, it was the complainant who ended up being indicted for slander and extortion after a video was released showing a new encounter between the two the night after the alleged rape, in which she can be heard saying to him (while slapping him): “You attacked me yesterday! You left me here alone.”

Outside the world of celebrities, a recent case caught my attention: that of a man who was found innocent after spending 12 years in prison accused of rape. Aside from the trivial judicial error and the personal drama involved, what is most surprising in this story is the fact that Carlos Edmilson da Silva was accused not by one, not by two, not by three women, but by ten women. How is it possible for ten women to be wrong about the man who raped them?

One of the lessons from these and countless other cases is that memory is flawed and self-interested, so it is a trap to consider it as a vehicle that would give direct access to a transparent factual truth. Psychologists, psychoanalysts and historians who work with Oral History know this well.

It is not just a matter of acknowledging that people lie — which would be a commonplace. When we think about testimony, we need to go beyond the simple dichotomy between telling the truth and lying. It is not plausible that the children, in the case of Escola Base, and that the ten women in the case cited would have acted with malice or bad faith, with the conscious and deliberate intention of accusing innocent people. They did not tell the truth, that is certain; nor did they lie (with the caveat that, in the case of the ten testimonies against Carlos Edmilson, it is known that the recognition of non-white people by white people involves a racial filter).

Perhaps the same could be said of the model Najila: if the statement “You left me here alone” is an indication that there was no rape — did the rape victim resent the man who raped her because he “left her alone”?! — it is possible that the experience of being alone was so unpleasant that she was led to resignify what she experienced the night before. This is just a conjecture: what she thought, what she felt, what her intentions were, only she knows, or perhaps not even she knows.

From a legal point of view, which is also the social and individual point of view in democratic societies, the principle of the presumption of innocence establishes that no one will be considered guilty except through due process of law — the word “due” is not an embellishment — and only after the process has become final.

What happens, however, when accusations become a spectacle? The principle of presumption of innocence, which is no longer taken seriously in Brazilian courts, goes up in smoke once and for all, and a media dispute is established between certainty of innocence and certainty of guilt, which the “legal operators” (not only lawyers, but also prosecutors and attorneys, and even judges) maliciously feed and feed on in return.

Who doesn't remember an unspeakable federal prosecutor writing to an equally unspeakable federal judge in 2016: "And congratulations on the immense public support today. Today you are no longer just a judge, but a great Brazilian leader (even if this was not sought)."

From the show grounds…

Silvio Almeida's fate was sealed when, on the same day the accusation was made public, he used the institutional channels of the department he headed to defend himself — which in itself is unacceptable — and, worse, to accuse others with inferences. In doing so, in addition to giving a clear signal that he would not resign, he took his defense to the dispute of the narrative in public opinion, that is, to the terrain of spectacle.

The result could not have been any other: in addition to giving even more momentum and legitimizing the narratives against himself, it angered Lula, who in 2005 was bitter to see his right-hand man voluntarily leave the government because he could not be the Chief of Staff and, at the same time, defend himself from the accusations he had suffered: whether guilty or innocent, every minute Zé Dirceu spent in office would contaminate the entire government — and he, a seasoned politician, knew this.

At the same time, it is impossible not to notice that the accused also chose, from the outset (i.e., before the accused had responded), to take the accusation to the realm of spectacle. The fact that there are four alleged victims and that one of them — none other than Minister Anielle Franco — came forward publicly is part of a strategy (thoughtful or not) of disputing the narrative: there is no doubt that her statement lends legitimacy and credibility to the accusation. But that is not all. It is worth paying close attention to the type of statements that were blatantly circulated during the spectacle.

After Silvio Almeida's dismissal, Anielle Franco declared: “Attempts to blame, disqualify, embarrass, or pressure victims to speak out in moments of pain and vulnerability are also unacceptable, as they only fuel the cycle of violence." The statement is justified in light of what was said and written in the previous hours, by anonymous people and celebrities on social media and by the accused himself, with repercussions in the press. Lula echoed this: despite having made the reservation that only the two people involved and God knew what really happened, the president declared: "It is the State's duty to protect victims".

Seen from a critical distance, these statements — and a multitude of others with the same content — echo the repeated forgetting of a certain semantic implication of the principle of the presumption of innocence: before the final judgment of the criminal process, there is no “victim” or “aggressor”, but only “alleged victim” and “alleged aggressor”, even when the defendant “confesses”, even in countries where torture is not common.

The difference is not small. Talking now about “victims” (not “alleged victims”) feeds the certainty that a crime was committed and that the accused is not the “alleged aggressor” (which in itself is enough to stigmatize), but the “aggressor”; therefore, what must be proven, and can only be proven through and after due legal process, is assumed, which is the same as condemning in advance. The mere (ostentatious and mediatized) use of a word has this power.

Let's go back to the complaint against Neymar in 2019: during the investigation, when the complaint was already showing signs of inconsistency, two prosecutors appointed to follow the case gave a press conference to, from the door of the police station, forcefully defend (perhaps foreseeing the collapse of the complaint) that “the victim's word counts a lot”. A few weeks later, however, the “victim” was no longer a “victim”.

Hence, in the present case involving Silvio Almeida, Anielle Franco and other people, as in many other cases — in fact, as is almost always the case — the fact that the adjective “alleged”/”supposed” disappears from the media and social networks makes all the difference. It is this difference that, for example, allowed Lula to declare, when he decided to dismiss him: “Someone who practices harassment will not stay in government". A statement that leaves no doubt about the guilt of the now ex-minister. Statements like this, with their claim to produce truth, are not a component of the spectacularization; they are the spectacle itself.

Some will retort: ​​but the ones making the accusation are not children, nor women who were each raped once by a stranger in a probably dark environment that was not conducive to recognizing the aggressor; it is a colleague who knew the alleged aggressor, lived with him, and was allegedly a victim of harassment in the workplace.

But is this enough to neutralize the presumption of innocence of the accused? Why is it so difficult that, in this case, the answer to the question of whether Silvio Almeida is guilty or innocent cannot simply be “I don’t know”? After all, due process exists precisely to arrive at answers like this. I suspect that this difficulty is based on the place that testimony has come to occupy in the production of truth in contemporary societies.

In a democratic society (in the strong sense of the term, not in the banal sense that the term has assumed), it would be the case that, until the definitive conclusion of due process, the alleged aggressor would be treated as if he/she were innocent, and the alleged victim would be treated as if he/she were a victim, without this implying, however, the use of the word “victim”: in the exact opposite direction, therefore, of the common place that is not only the use, but the ostentatious and mediatized use of this word and its opposites: “the aggressor”, “the rapist”, “the harasser” etc. (words that, in democratic societies, are not used even after the definitive conviction).

To this end, it would be necessary for complaints and legal proceedings to be handled strictly within the judicial sphere, and not to be made into a spectacle. And if, in the case in question, the only way for Silvio Almeida to leave his position — in the case of the minister, the complaint alone was reason enough for him to leave, even if he were innocent — was to relegate the complaint to the realm of spectacle (with public lynching being a side effect, a necessary evil), or if this was seen not as the only way, but as the best way (with public lynching, in this case, being seen as desirable), in either case we are faced with a symptom: that the only social grammar we know and are capable of using is the grammar of violence, even when we fight for recognition and emancipation.

…to the realm of experience

Below the spectacle, there is the realm of the lived, of people of flesh and blood who have names and surnames. At first glance, the spectacle seems to have a life of its own, being indifferent to what is experienced: however, beyond the fact that the people involved are also people of flesh and blood, who have suffered and will suffer the consequences of what happened and of the spectacularization of what happened, between these two spheres there is another overlap, of greater social depth and historical duration, and it is necessary to seek it out.

It is instructive to take as a reference reading that American writer Toni Morrison did of the OJ Simpson case, recorded in the book Birth of a Nation'hood. Gauze, Script, and Spectacle in the OJ Simpson Case (1997). Toni Morrison sees this ultra-spectacularized trial, broadcast on open television, which polarized American society, as the turning point that began what she calls the post-Civil Rights era, in which old supremacist discourses returned to circulate with force in the US — an era that has only deepened since then.

More than the case itself, Toni Morrison's interest is to capture, in the speeches that were produced and circulated in the context of the trial, a cultural framework that echoes long-term feelings, perceptions, fears and expectations. And that has practical repercussions on everyday life.

Whether or not former American football player OJ Simpson was guilty of the double homicide he was accused of—that was not her interest—it was important to understand the social roots of the emergence of a brutal (and growing) hostility towards African-Americans, in that context materialized in the hostility towards OJ Simpson, and the response of the African-American community—which supported him in force—to that same hostility.

Toni Morrison then focused on the discourses that were produced and circulated in the context of the trial, with the concern of connecting them to non-discursive practices, especially the conduct of the police in criminal cases involving African-Americans.

A similar exercise would be worth carrying out among us. In the case of the complaint against Silvio Almeida, despite the fact that he and one of the alleged victims — the only known one — are black, it is essential to recognize that his spectacularization resonates with discursive practices and types of statements that are common in Brazilian courts (especially in Criminal Law), where, however, most of the convicts are black people, and the accusers and judges are mostly white, wealthy people (those who were not rich before entering the career become so thanks to the position, which already offers a “miserable wages"equivalent to the salary of university professors at public institutions in the last stage of their career, in addition to indecent bonuses and benefits, whose indecency is not sufficient, however, to prevent them from being transformed into salary when they look bad in public opinion), and which exercise their power and authority from two past entities called the Public Prosecutor's Office and the Court of Justice, respectively.

Now, if the spectacle that took place last week operated with the perception that testimony has absolute value and that it is sufficient to establish the truth, it is necessary to see and seriously examine the fact that it is exactly this same discourse that takes place every day in courts in all sorts of cases within the scope of Criminal Law.

It turns out that — and this is not a mere detail — for every Silvio Almeida (or another person with fame and notoriety) who falls into disgrace from time to time, hundreds of Carlos Edmilson da Silva fall into disgrace every week in the criminal courts of the Courts of Justice at the hands of the Public Prosecutor's Office, for drug trafficking (whose criminalization is nothing more than a device for social and racial control), robbery, theft, rape, etc., whether they are guilty or not. Many are not, and even if they are not, they are still convicted with pomp and circumstance, in trials that are often mini-spectacles, a veritable festival of catchphrases: “so-and-so is a danger to society”, “society can't take it anymore”, “we need to defend society”…

And even those who actually committed the crimes of which they were accused suffer an absurdly disproportionate punishment, with all kinds of deprivation and mistreatment, not only physical, but also psychological. In Brazilian courts, as in many other countries, the testimony of alleged victims (or police officers) is sacralized, to the point that it is often enough to convict..

I am aware that the law, and the “doctrinaires”, establish that testimony alone is not sufficient for conviction; but I am not concerned here with what is written in the law or in the treatises of doctrinaires, but with what actually happens in the courts.

It is no coincidence: just as the public freely condemns on social media, in court prosecutors accuse as they wish to accuse, and judges condemn as they wish to condemn, all using the same discursive devices — public, prosecutors and judges — with the difference that the public only states what the “legal operators” convert into doctrine: it is a whole pseudoscientific litany about the “value of testimony”, which in courts is justified — when it is justified — based on precepts included in the so-called “legal argumentation” (a euphemism for a crude and vulgar form of reasoning), practiced in courts with all the rococo and ridiculous rituals that seem to have come straight from the Ancien Régime and that barely disguise the often proto-fascist inclination of its operators.

The case of the judge who wrote his football team's anthem in a sentence It is just an extremely bizarre facet, so bizarre that it becomes jocular, of a systematic and regular practice, but which has the advantage of exposing, without beating around the bush, what the courts are: the terrain of total exception.

While it is not appropriate to generalize, if there are serious prosecutors and judges, if some are even anti-fascists, the point is that the dynamics of the courts are such that prosecutors and judges can, if they wish, act in an extremely arbitrary and abusive manner — and many do. The control mechanisms fail, not least because what should be the object of control is commonly accepted by those who are responsible for controlling it, that is, what is arbitrary and abused is almost never seen as such, but as part of the landscape. At the core of arbitrary action and abuse lies the nefarious “discretionary” (a euphemism for “I do what I want”) valuation of testimony.

What I am suggesting here is the existence not of a mere correlation, but of a substantive connection, of a nature that is both social and epistemic, and that has historical roots: the place that testimony occupies in the production of truth in the contemporary world, and that gained extraordinary reinforcement from the 1960s onwards with the crisis of notions of referentiality, has as its matrix the law, in particular criminal law. It is not surprising that the emancipatory discourse of our days shares the same semantics as criminal law, to which it increasingly returns in its effort to put into practice, nor that some of its enunciators today come from this environment or move through it with unashamed ease and ease, which thirty years ago would have been unthinkable.

Thus, the prosecutors who worked on the case involving the player Neymar — for the naive on duty, it is worth remembering that you do not need to be left-wing to occupy this position — did not invent the thesis that “the victim's word counts a lot”; rather, they simply applied to the area in which they work what they learned in college when they studied law, and which has always been applied in criminal law, for all types of cases.

Here, a distinction is necessary: ​​if testimony assumes a similar weight globally, including in countries where, thanks to the struggle of generations of subalterns (and their involvement in the Second World War), material and immaterial conditions of existence have been achieved that have no parallel on the periphery of capitalism, we must ask ourselves what happens when this same pattern takes place in a country like Brazil, crossed by profound inequalities and marked by patrimonialist practices, legacies of slavery and the Ancien Régime.

Occasional punitivism

Returning to the complaint against former minister Silvio Almeida, and focusing on the relationship between the spectacular and the lived, it is ironic, and at the same time tragic, to find the same discourse that is standard in the courts being replicated and updated in a case that has at its center, as one of the alleged victims, the head of the Ministry of Racial Equality.

Perhaps we can see here, with special clarity, the type of struggle for equality and the conquest of rights that we have become familiar with over the last twenty years, with all its contradictions, whereby possible equality is accompanied by the reinforcement of structures of subjection, privilege and domination: in the case in question, the contradiction that is revealed is that according to which the struggle for equality — and there is no doubt that Anielle Franco's speech has to do with the struggle for equality and emancipation — is accompanied by a extraordinary reinforcement of punitivism, the same punitivism that, through a discursive practice identical to that which we have observed in recent days in the press and on social media, produces the mass incarceration of people who, for the most part, are black and brown.

We all know that the Brazilian right is, has always been and will always be punitive. But is it by chance that in recent decades the anti-punitive agenda, and the discourse that accompanies and encourages it, have been losing ground on the left? Or is it the forgetfulness of anti-punitiveness? passi passu to the reinforcement of its reverse are a necessary face of deeper changes, long-lasting, profound and strong enough to give a new shape to the ideas of emancipation, to the point that we stop feeling and thinking as before and start to feel and think more and more with the mind of public prosecutors?

In the end, perhaps that is all it is: perhaps we are just going through a time when contradictions are beginning to take on clear contours. And perhaps it is no coincidence that it is precisely at this time that the savior of the nation and hero of the moment is none other than a former public prosecutor and former Secretary of Public Security in São Paulo, an enthusiast of police operations in Rio de Janeiro's communities, for whom "The great institutional challenge in Brazil today is to evolve the ways of fighting crime"Everything is connected. This is the time when we can begin to see the abysmal depth of our historic defeat — that is an advantage.

*Antonio David He has a PhD in Philosophy from USP and is currently pursuing a PhD in Social History from the same institution..

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