Maria da Penha law
The Maria da Penha law (Portuguese: Lei Maria da Penha) is the informal title for Brazil ‘s Federal law number 11.340, enacted by the National Congress of Brazil and sanctioned by former-President Luiz Inácio Lula da Silva on 7 August 2006.“Law no. 11.340 of 7 August 2006”. Retrieved 9 July 2012. The law regulates violence against women in every aspect of the domestic life and is regarded as a milestone in terms of national legislation on gender.
The Maria da Penha law contains a comprehensive set of policies geared towards the eradication of the endemic problem of domestic violence against women in Brazil . It establishes special courts and stricter sentences for offenders, but also other instruments for prevention and relief, such as police stations and shelters for women. Provisions under the law are among the most innovative to date and include prevention, punitive, and protective measures. In addition, this law also seeks to build capacity among civil society organizations to better monitor and evaluate policies designed to combat the problem of violence against women.Maria
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Maria da Penha
The informal title of Law no. 11.340 as the “Maria da Penha law” is a tribute to Maria da Penha Maia Fernandes (Ceará, Fortaleza, 1945). In 1983, Maria da Penha, a Brazilian national and bio-pharmacist, was the victim of a double homicide attempt by her then husband and father of her three daughters – Marco Antonio Heredia Viveiros, Colombian naturalised Brazilian, economist and college professor – inside their house, in Fortaleza. Viveiros shot her through the back while she was sleeping, causing her irreversible paraplegia. On a later occasion, he tried to electrocute her in the bathroom.CLADEM (25 January 2010). “María da Penha Case, Brazil (domestic violence against women)”. Retrieved 9 July 2012.
In 1984, Maria da Penha began a legal process against Viveiros. Seven years later, he was sentenced by jury to 15 years in prison. The defense appealed the sentence and the conviction was overturned. A new trial was held in 1996 and a sentence of 10 years was applied.Ministério Público do Estado do Ceará. “Maria da Penha”. Retrieved 19 July 2012. However, Viveiros remained at large. Consequently Maria da Penha, together with the Center for Justice and International Law (CEJIL) and the Latin American and Caribbean Committee for the Defense of Women’s Rights (Comité de América Latina y el Caribe por la Defensa de los Derechos de la Mujer, CLADEM ), submitted the case to the Inter-American Court of Human Rights (Comisión Interamericana de Derechos Humanos, CIDH).“Maria da Penha Maia Fernandes v. Brazil”, Case 12.051, Inter-Am. C.H.R., Report No. 54/01,OEA/Ser.L/V/II.111 doc. 20 rev (2000). Retrieved 9 July 2012. The respondent state, Brazil, did not answer the petition and remained silent throughout the procedure.
In 2001, the CIDH found the state of Brazil responsible for violation of the right to a fair trial and judicial protection, guaranteed in Articles 8 and 25 of the the American Convention on Human RightsOrganization of American States. “American Convention on Human Rights, “Pact of San Jose”, Costa Rica”. 22 November 1969. Retrieved 21 July 2012., in accordance with the general obligation to respect and guarantee rights set forth in Article 1(1) of the same instrument, because of the unwarranted delay and negligent processing of this case of domestic violence in Brazil; for the violation of the rights of Maria da Penha and the failure to carry out its duty assumed under Article 7 of the Convention of Bélem do ParáOrganization of American States. “Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Bélem do Pará”)”. 9 June 1994. Retrieved 9 July 2012. in relation to the rights protected by it, among them, the right to a life free of violence; and for the failure, despite existing measures, to address violence against women, in particular through ineffective police and judicial action in Brazil (paragraph 60).
Furthermore, the CIDH set forth recommendations in relation to the case itself as well as in relation to Brazil’s public policies, including, completing the penal process of the perpetrator; carrying out an investigation and allocating responsibilities regarding the irregularities and unjustified delays in the process; providing a symbolic and material redress for the victim; promoting the training of specialised judicial and police officers; simplifying penal judicial procedures; promoting alternative forms of solution for intra-family conflicts; multiplying the number of Women’s Police Stations with special resources and offering support to the Public Ministry in its judicial reports; including in the pedagogic plans curricular units on the respect for women, her rights, the Convention of Bélem do Pará and the handling of intra-family conflicts (paragraph 61).
In March 2002 the penal process in Brazil was terminated and in October of that year, the former husband of Maria da Penha was arrested. He received a sentence of just over six years for two counts of attempted murder, but he has served only two by making use of judicial remedies. Redress for Maria da Penha was carried out more than 6 years later, on 7 July 2008, in a public event held in Fortaleza, by means of the payment of an indemnity of R$60,000 and an apology from the government of Ceará, with the Brazilian State acknowledging its international responsibility vis-à-vis the violence occurred. The investigation and accountability related to the irregularities and unjustified delays in the process in the realm of internal justice are still pending.
The case of Maria da Penha Maia Fernandes v. Brazil in front of the inter-American Commission became a landmark case because besides revealing the systematic pattern of violence against women in the Brazil and contributing to internal changes, it was the first time that the Convention of Bélem do ParáOrganization of American States. “Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Belem do Para”)”. 9 June 1994. Retrieved 31 July 2012. had been applied in the Inter-American system, that domestic violence against women was analyzed by the Commission, and that a ruling of the same had found a country responsible regarding such matters of domestic violence.
Between 2002 and 2004, the Non-Governmental Organisations Feminist Advocacy, Schedule, Themis, CLADEM , Cepia , and CFEMEA , gathered in the form of consortium to draft a law to combat domestic violence and violence against women. On 7 August 2006, following several discussions and consultations between civil society and the state of Brazil, Law no. 11.34, referred to as the Maria da Penha Law, was approved.Secretaria de Enfrentamento à Violência contra as Mulheres. “Lei Maria da Penha, Breve Histórico” [The Maria da Penha law, Brief History]. Retrieved 9 July 2012..
Article 5 of the Maria da Penha law defines domestic and family violence against women as any action or omission based on gender that causes a woman’s death, injury, physical, sexual or psychological suffering and moral or patrimonial damage whether in the domestic-unit (understood as the permanent space shared by people, with or without family ties, including people sporadically aggregated), within a family (understood as the community formed by individuals that are or consider themselves related, joined by natural ties, by affinity or by express will), or in any intimate relationship of affection, in which the aggressor lives or has lived with the abused woman, regardless of cohabitation.
Features of the law
The Maria da Penha law:“Maria da Penha Law, Law no 11.340 of August 7, 2006, Retrains domestic and family violence against Women” (2006). Special Secretariat for Women’s Policies Presidency of the Republic, Brazil.
- Classifies and defines domestic and family violence against women.
- Outlines some of the forms of domestic violence against women as physical, psychological, sexual, patrimonial and moral.
- Determines that domestic violence against women is not dependant on the woman’s sexual orientation.
- Determines that the female victim may only withdraw the police report before a judge.
- Removes from the special criminal courts (law no. 9.099/95) the competence to judge crimes of domestic violence against women.
- Establishes the creation of special courts of domestic and family violence against women with civil and penal competence to address family issues derived from violence against women.
- States that the female victim of domestic violence will be informed of the procedural acts, especially of the prison entry and exit of the aggressor.
- States that female victim must be accompanied by attorney or public defender in all the procedural acts.
- Alters the penal procedure code to allow the judge to decree preventive custody when there is risk to the physical or psychological integrity of the woman.
- Forbids pecuniary sentences (payment of fines or basic food baskets).
- Amends the criminal code in order to increase punishment for bodily harm committed by family relatives to imprisonment lasting from three months to three years, depending on circumstances (previously the law catered for an imprisonment term of 6 months to one year).
- Alters the law of penal executions to allow the judge to determine the obligatory attendance of the aggressor in recovery and re-education programs.
- Establishes that if domestic violence is committed against a female victim with special needs, the sentence will be increased by one third.
With respect to the police authority, the law:
- Includes a specific chapter on assistance provided by the police authority in cases of domestic violence against women.
- Allows the police authority to arrest the aggressor in the act of domestic violence against the woman.
- Establishes that the judge determine several urgent measures, within 48 hours, to protect the woman in a situation of violence.
With respect to the judicial process, the law:
- States that the judge may determine, within 48 hours, urgent protective measures (suspension of the aggressor’s license to carry weapon, removal of the aggressor from the home, keeping distance from the victim, among others), depending on the situation.
- Establishes that the judge of the court of domestic and family violence against women is competent to appreciate the crime and the cases that involve family issues (alimony, separation, custody of children etc.).
In March 2011, the Brazilian Supreme Federal Court (Supremo Tribunal Federal, STF) ruled for the constitutionality of the Maria da Penha law, which had come into question.Processo: 999.2011.000560-3/001, Habeas-Corpus. Supremo Tribunal Federal (24 March 2011). “STF declara constitucionalidade do artigo 41 da Lei Maria da Penha” [STF affirms constitutionality of Article 41 of the Maria da Penha law]. Retrieved 10 July 2012.
In February 2011, in its review of the law, the STF considered that legal action against an offender can be taken without the victim’s consent. This would mean that legal action could be taken not only by the victimised woman but also by the Public Office (Ministério Público), which can initiate criminal proceedings without the requirement of the victim’s initial legal action.Supremo Tribunal Federal (9 February 2012). “Supremo julga procedente ação da PGR sobre Lei Maria da Penha” [Supreme court judges uphold the action of the Attorney General on the Maria da Penha law]. Retrieved 10 July 2012. This came as a reaction to evidence that a large proportion of legal actions were withdrawn by the victimised woman. This resolution was considered by the feminist movement as a significant one, as it represents the end of impunity of violence against women in Brazil.Central dos trabalhadores e trabalhadoras do Brasil (10 February 2011). “Feministas comemoram mudança na Lei Maria da Penha” [Feminists welcome changes to the Maria da Penha law]. Retrieved 10 July 2012. Additionally, the STF decided that all Brazilian States and Municipalities are obliged to adopt integrated prevention measures to avoid violence against women (under the Maria da Penha law, the adoption of integrated prevention measures is not an obligation as such) in order to reinforce their role and responsibility in implementing the Maria da Penha law.
In August 2011, the National Council of Justice of Brazil collected data showing positive results: more than 331,000 prosecutions and 110,000 final judgments, and nearly two million calls to the Service Center for Women. Whilst Maria da Penha herself admits that the law constitutes a turning point in Brazil’s attitudes towards domestic violence, she has pointed out that there is the need for more financial resources to implement it in all its power. “The problem is not the law but in its application,” she insists. “Unfortunately, these instruments exist only in big cities.”UN Women (30 August 2011). “Maria da Penha Law: A Name that Changed Society”. Retrieved 19 July 2012.