5.1.1 When do the police get involved in domestic disputes or legal actions?
As a rule, the police get involved in cases of domestic violence only in the event of complaints from the victims themselves or from third parties who witnessed any act from the aggressor.
5.1.2 What circumstances effect law firm involvement?
Usually when the victim wants to file a complaint against the aggressor or once the criminal action has started.
5.2.1 Is proof required by any legal means?
Usually proof is required in cases of domestic violence (such as witness and medical reports, among others). However, there have been decisions by the superior court in Brazil where, to fit aggression against women within the concept of domestic violence established by the Maria da Penha Law (Law 11.340/06), it is enough that the fact occurred as a result of a romantic relationship between the victim and the aggressor.
5.2.3 Is proof "beyond a reasonable doubt" required?
Yes. In the context of domestic and family violence against women it is required that the victim's word should be corroborated by evidence in order to convict the aggressor.
5.3.1 Are affirmative defenses available to the accused?
Yes. However, the applicability of affirmative defenses will vary from case to case.
5.3.3 Are false accusations punishable for the victim?
Yes. According to the Brazilian Criminal Code, false accusations are considered crimes and punishable.
5.3.4 How is consent discussed in the law?
The victim's consent generally means the victim's act of consenting to or agreeing to the injury or danger of injury. The consent of the victim may absolve the alleged offender or decrease the offender's penalty.
5.4.1 What is a witness's duty to testify honestly and completely?
The witness is usually required to testify and they are obliged to testify honestly and completely.
5.4.3 What potential "excuses" can a witness raise to refuse to testify in a domestic violence action?
One example is that witnesses under the age of 14 are not obliged to testify. Also, an ascendant or descendant, a lineal relative, a spouse — even if separated, a sibling or the father, mother or adoptive child of the accused can refuse to testify.
5.4.4 What is the impact of domestic violence on witnesses who are children?
Yes. Article 18 of the Statute of the Child and Adolescent (Law 8.069/1990) provides that "it is everyone's duty to ensure the dignity of the child and adolescent, making them safe from any inhuman, violent, terrifying, vexing or embarrassing treatment." In addition, the Code of Criminal Procedure provides that a witness under the age of 14 it is not obliged to testify.
5.4.5 Can children be called upon to testify?
Article 208 of the Code of Criminal Procedure also provides that a witness under the age of 14 cannot provide a commitment; therefore, they are also not obliged to testify. Thus, the testimony, even if given, would have a relative value.
5.4.6 What is the effect of a child victim on the charges against the offender?
The offender will be charged for crimes committed against children as described in the Statute of the Child and Adolescent.
5.5.1 What are the penalties and sentencing laws for first-time domestic violence offenses?
The penalty or sentencing law will vary from case to case for first-time domestic violence offenses. Although the media focuses on maximum penalties, such as prison sentences, in daily life the actual penalty tends to be close to the legal minimum provided for the penalty type. Nowadays, the penalty range is between three months to three years in prison. However, there are two proposed bills discussing the possibility to push the minimum and maximum range up. The Maria da Penha Law forbids the enforcement of a monetary penalty in cases of domestic violence (Article 17, of the above-mentioned law).
5.5.3 What is the result of a violation of an existing order for protection?
Failing to comply with a judicial order that grants emergency protective measures can subject the offender to penalties that range from three months to two years in jail.
5.5.4 What fines and other penalties are imposed besides incarceration and liberty restriction?
In Brazil, different forms of punishment and rehabilitation are available as alternatives to incarceration. These types of penalties are known as alternative sentences. Payment of a fine and provision of services to the community or public entities are examples of alternatives to incarceration.