Brazil May Fix Bias in Penal Code

If Myllena Calazans has her way, there will be no more honest women in Brazil. Officially speaking, at any rate.

Legislation now working its way through the Brazilian Congress aims to remove references to “honest women” from this country’s penal code, a change that women’s rights activists such as Calazans wholeheartedly support.

The description is one that has enabled rapists and abusers to go free. It has kept Brazilian criminal law mired in male chauvinism for decades, critics charge, and more often than not has been used to harm women, not defend them.

At issue is the provision of the code that deals with sexual assault. Written more than half a century ago, the passage mandates punishment for anyone who coerces an “honest woman” into having sex, a label that meant an unmarried virgin or another man’s wife.

The implication, however, was that only those women deserved protection, whereas the others deserved what they got. Judges ruled accordingly, dismissing the complaints of “unchaste” women -- those who dared have sex outside marriage -- and exonerating their attackers. The men, the thinking went, must have been provoked or somehow ensnared by the brazen women.

Such misogynistic views have no place in a country eager to tout itself as modern and progressive, advocates of change say.

“There is still a discriminatory vision with respect to the law that does not correspond with the advances of the Constitution of 1988,” said Calazans of the Feminist Studies and Counseling Center.

“The penal code was written in the ‘40s, and virginity is treated as a virtue to be preserved and that required judicial protection. Terms like ‘virgin woman’ and ‘honest woman’ are part of that. It’s outdated.”

In many parts of this vast country, the practice of law has moved beyond such notions. Jurists dispense more evenhanded justice and opt to ignore the narrow formulation of the penal code and its vision of proper womanhood.

But traditions and precedents die hard. Just two years ago, the Brazilian Superior Court, the highest judicial authority in the land after the Supreme Court, felt it necessary to examine the “honest” nature of the women victimized by a criminal who was appealing his conviction.

The man, a leading local practitioner of one of Brazil’s African folk religions, had tricked the women into having sex by claiming that it was necessary for their spiritual welfare.

The court turned down his appeal to be set free, partly on the conclusion that his victims were indeed “honest women,” which the judges defined as those “who possess a certain dignity and decency, maintaining elementary values of chastity.”

In a nod to changing mores, the court added that this did not necessarily mean women who were entirely abstinent. But women’s rights groups and other civil liberties campaigners find it appalling that the supposed purity of the victims is deemed relevant at all in such cases.

“It’s not important whether a women is honest or not. If false pretenses are used in the pursuit of sex, it’s criminal,” Antonio Carlos Biscaia, a member of Congress, told the daily newspaper O Globo.

Biscaia is a leading proponent of modifying the penal code to reflect modern mores. The measure currently before Congress enjoys broad support and is expected to be approved by both houses of the legislature and by President Luiz Inacio Lula da Silva, but it has faced a number of procedural delays.

Backers hope for passage by early next month. If approved, the revision in the criminal code would follow efforts in 2002 to remove sexist language and practices from the civil code, such as a provision that automatically registered the man as head of the household.

Changing attitudes, however, is likely to be a longer process. Machismo and discrimination against women remain engrained in much of Brazilian life, as a recent survey in Rio by the nonprofit Promundo Institute shows.

The study found that a large number of the men polled believed it acceptable to beat their wives or companions if domestic chores were not properly performed.

About half the men reported having on occasion exercised some form of coercion -- physical, psychological or sexual -- against their partners.

Another survey in Sao Paulo showed that 70% of domestic violence cases were shelved after being reported to police. The main reason was that the victims halted proceedings in hope of reforming, or after forgiving, their abusers.

Women who are victims of crime still face institutional obstacles in their quest for justice, activists say.

Rape victims, Calazans said, often encounter unsympathetic attitudes from police officers, forensic examiners and hospital officials when they try to report the attack.

“Through all these stages, she may become a victim of the system as well,” Calazans said.

“Approval of a change in terminology is a first step,” Calazans said of the move to strike “honest women” from the penal code.

“You need to have it accompanied by public policies.”