Women and Justice: Court: Brazilian Federal Supreme Court

Domestic Case Law

Decriminalization of Abortion in Cases of Anencephaly: Claim For Disobeying a Fundamental Constitutional Dispositive No. 54/2004 (in Portuguese) Brazilian Federal Supreme Court (2012)

Gender discrimination

In 2004, the Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) considered a claim brought by the National Trade Union of Health Workers and ANIS (Institute of Bioethics, Human Rights, and Gender) to determine whether terminating a pregnancy in which the fetus suffers from anencephaly (absence of major portion of the brain, skull, and scalp) violates the prohibition on abortion as set forth in Brazil’s Penal Code. On April 12, 2012, the STF rendered an 8-2 decision (with one abstention) that abortion in the circumstance of anencephaly is not a criminal act under the Penal Code. The majority extended a woman’s right to terminate her pregnancy to cases of anecephalic fetuses because the fetus does not have the potential for a viable life outside of the womb, and to force a woman to carry such a pregnancy to term is akin to torture. Justice Marco Aurelio and the majority held that to interpret the Penal Code to prohibit such abortion would violate a woman’s constitutional guarantees of human dignity, autonomy, privacy, and the right to health. A woman therefore may seek and receive treatment to terminate the anencephalic pregnancy without risk of criminal prosecution and without judicial involvement.



Rape Defined As Heinous Crime for Sentencing Purposes: Habeas Corpus No. 81.288-1 (in Portuguese) Brazilian Federal Supreme Court (2003)

Sexual violence and rape, Statutory rape or defilement

The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) denied the petition for writ of habeas corpus of Valdemiro Gutz, who had been convicted by the Superior Court of Justice – Santa Catarina of raping his two, minor daughters, both under the age of fourteen, over a period of five years. Although Gutz had been sentenced to 16 years and 8 months in jail for his crimes, the lower court subsequently reduced Gutz’s sentence by one-quarter, pursuant to Presidential Decree 3.226/99 (“Decree”). The lower court determined that the reduction was not barred by Article 7, Section 1 of the Decree, which states that a reprieve shall not apply to those convicted of “heinous crimes and those of torture, terrorism, illegal trafficking.” In response to the reduced sentence, the public prosecutor argued that Gutz’ crime fell within the “heinous crimes” exception to sentence reductions. The Service of Criminal Review of the State of Santa Catarina subsequently filed for writ of habeas corpus, arguing that crimes of rape and sexual assault do not fall within the scope of the “heinous crimes” exception except where serious bodily injury or fatality results. The Court examined the legislative language and treatment of rape, sexual assault, and other crimes, with respect to qualifying such crimes as “heinous.” The majority of the Court held that the legislation already had classified rape as a heinous crime. The Court denied the writ, and Gutz’s sentence remained without reduction.



Sexual Assault Against a Minor is a Presumed Violent Act: Habeas Corpos No. 74.983-6 (in Portugeuse) Brazilian Federal Supreme Court (1997)

Sexual violence and rape, Statutory rape or defilement

The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) denied the petition for writ of habeas corpus of Mario Somensi, upholding the constitutionality of Article 224(a) of the Penal Code which establishes a presumption of violence in sex crimes against minors. Somensi was convicted of rape and child abuse, and was sentenced to a prison term of eight years for rape and one year and ten months for child abuse. In his appeal and writ, Somensi argued he had committed no violence and that the presumption of violence set forth in Article 224(a) of the Penal Code was unconstitutional. The Court first noted that the provision in question predated Brazil’s 1988 Constitution and could not be found “unconstitutional” with respect to its construction. Rather, the Court examined its compatibility with the 1988 Constitution and found that the purpose of the presumption – to protect minors who legally are incapable of offering consent – was consistent with and expressed by the broad statement in Article 227 § 4 of the Constitution that “[t]he law shall severely punish abuse, violence and sexual exploitation of children and adolescents.” The STF held that the presumption did not violate constitutional principles, even when the presumption embraced what otherwise would be a factual matter requiring evidentiary proof.



Constitutionality of Lei Maria da Penha (Federal Domestic Violence Law ) (ADC 19 and ADI 4424) (in Portuguese) Brazilian Federal Supreme Court (2012)

Domestic and intimate partner violence, Gender discrimination, Gender-based violence in general

Following a request to Brazil’s Federal Supreme Court (Supremo Tribunal Federal or “STF”) by then-President Luiz Inácio Lula da Silva, the STF reviewed and upheld the constitutionality of the Lei Maria da Penha (“LMP”). The LMP is Brazil’s first law to address the problem of domestic violence against women on a national scale. The law’s provision for the creation of special courts, as well as the law’s differentiated protection of women, had come under scrutiny in many of Brazil’s lower courts as unconstitutional. The STF, however, has previously held that those articles were constitutional. President Silva argued that the LMP was constitutional due to Article 226, § 8 of the Federal Constitution, and Brazil’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women. The Justices agreed that the LMP does not create a law of unequal treatment as between men and women, but addresses the reality of longstanding discrimination and aggression directed at women, and offers substantive mechanisms to promote equality without impinging on the rights of males. The Court also found that the provision of specialized courts is constitutional and not in conflict with state control of the local courts. Finally, with a majority vote of 10-1, the Justices held that the office of the public prosecutor can prosecute domestic violence cases even when the victim fails to appear or file a complaint against her aggressor. The majority reasoned that state intervention is necessary to guarantee the victim’s protection from the risk of ongoing violence, which may be aggravated by the victim appearing in the action against her aggressor.



Constitutionality of Social Security Minimum Payment Provision as Applied During Maternity Leave: ADI 1946-5 (in Portuguese) Brazilian Federal Supreme Court (2003)

Employment discrimination, Gender discrimination

The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) reviewed the constitutionality of the 1998 Amendment 20 of the federal Social Security Law. The amendment imposed a maximum value on the amount of social security benefits that could be paid to a beneficiary under the general social security system at R$1,200 per month. On its face, the R$1,200 maximum applied equally to a number of eligible benefit categories, including maternity or pregnancy-related leave. The amendment was challenged on the grounds that, when read together with Article 7, Section XVIII, of the 1988 Brazilian Constitution, the amendment had a discriminatory effect on women. This provision essentially guarantees that an employee is paid her full salary during maternity leave. By imposing a cap on social security coverage during maternity leave, Amendment 20 would require the employer to cover the difference between the R$1,200 cap and the employee’s full pay. The party challenging the amendment argued that this created a negative incentive to employers who would discriminate in hiring women or in setting women’s salary by paying women less in order to stay under the R$1,200 cap. The Court agreed that Amendment 20 was discriminatory in its effect. In a unanimous decision, the STF held that the effect of Amendment 20 conflicted with the Brazilian Constitution’s equal protection provisions that prohibit discrimination on the basis of sex. The Court therefore ordered that Amendment 20 be interpreted in a manner consistent with the Article 7 of the Constitution such that implementation of the social security cap does not extend to maternity and pregnancy-related leave.