The new bill that turns libidinous behavior into crime and increases the penalty for typified rape, explained

Due to the repercussion of collective rape cases, sexual harassment on public transport and spreading of intimate photos online, bill 618/2015 started to be discussed by the Brazilian Congress, and it has been sanctioned by serving president Dias Toffoli on September 2018.

PL 618/2015 was drafted by Senator Vanessa Grazziotin, from the party PCdoB, Amazonas state branch, and it turns into crime “molesting one in public places or places that are accessible to the public, in such a way as to be considered an indecent assault.” The penalty prescribed is incarceration of five years. This law extended the penalty for rape cases involving two or more people, an increase of two thirds over the previous one.

Spreading of rape and rape of vulnerable ones, sex or pornography scenes is now punished with two to five years of incarceration for those who provide, exchange, broadcast, distribute, publish or disclose such scenes, by any media, and the penalty is increased in up to two thirds if the crime is committed by one who keeps or has kept an intimate, affective relationship with the victim, such as a boyfriend, girlfriend, husband or wife. The goal is to avoid cases known as “revenge pornography.”

Victories and contradictions

DeFEMde (Female Network of Lawyers) has contributed to draft the new law when the issue was being debated at the Committee for the Defense of Women’s Rights, in the House of Representatives. Marina Ganzarolli, lawyer and co-founder of DeFEMde states that, although it is not ideal, the approved law represents a major advance in the fight for more safety for women and gender questions, which include sexual orientation and several gender identities.

“I see the approval positively because now, sexual crime actions are unconditioned to representation.” This means that, regardless of the victim manifestation, the Public Prosecutor’s Office must file a complaint and an investigation should be carried out to verify cases in which sexual crimes could have been committed. The lawyer also points out that “we have taken the first step towards homophobia and LGBTphobia criminalization in Brazil, typifying the rape category,” as the new law increases the penalty for “corrective rapes” – that is, performed as a way to “correct” one’s gender identity or sexual orientation.

However, Marina notes that creating more typifications of crimes already prescribed in law does not necessarily help the fight for women’s rights, especially the law ordering incarceration and not integration of policies in healthcare, education, social and psychological assistance areas, such as the Maria da Penha law. Marina fears the new law classifications deviate from being deemed rape crime, where occurrences can be generically understood as “sexual molestation”, in which punishment is milder – and not rape, in which penalty is tougher.

“It’s a strategic choice. I think we should educate judges into applying the law as it has been designed, not to create crimes to suit the judges’ demand, who don’t want to apply the current law.” According to Marina, there is a tendency to consider rape law too tough for sexual crimes in public transports and locations, leading to distortion of law interpretation and application.

She remembers a recent case in which a man ejaculated on a woman’s neck on a bus in the city of São Paulo. The judge considered the act as “offensive harassment”, in which the sentence is from 1 to 5 years in prison, and not rape, whose penalty ranges between 6 and 10 years.

“Some things are not ideal yet, but surely, they add some weight against violence. We should also note that a change in criminal law won’t actually reflect in increasing women’s safety. The Maria da Penha law is good because it doesn’t mention jail. It’s about protection-integrated measures. Even so, its application is flawed. So, just by making changes in the criminal code doesn’t help if there’s no integration with the healthcare system, for instance. While hospitals don’t provide mandatory reporting of sexual violence, we can’t make these reports reach the criminal justice system. No wonder in only 10% of cases (the victims) reach out.”

Revenge pornography

To the lawyer, the criminal sentence for the unconsented spreading of intimate photos is also a crucial step. She notes that she does not like using the term “revenge pornography”. “First because there’s no pornography, since it wasn’t meant for sale. Second, because there’s no revenge, as the woman simply broke up.” Until then, the law did not prescribe the act as a crime but as unlawful harassment, breach of the peace, or threat, which are simply contraventions or misdemeanors. Now the penalty is 5 years of incarceration.

Content published in October 22, 2018

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