6. Special issues | Brazil | Fighting Domestic Violence

6.1 Battered woman syndrome

6.1.1 Can lawyers present evidence of battered woman syndrome or other domestic abuse as an affirmative defense to crimes that the battered woman has committed? (Note: Battered Woman Syndrome is accepted by courts in certain jurisdictions to show that battered women can use force to defend themselves and sometimes kill their abusers due to abusive and life-threatening situations.)

Battered woman syndrome is not expressly recognized in the law. The Brazilian Criminal Code provides for attenuating circumstances to be assessed when determining the applicable penalty (but not by the fact finder when assessing guilt). Domestic violence is not expressly provided as one of the attenuating circumstances, but Article 66 contains a general clause that could allow this defense to be used. Note that case law regarding domestic violence usually refers to the alternative scenario, namely, that the penalty can be aggravated for the perpetrator in a domestic violence circumstance. Brazilian criminal law also provides for self-defense claims. In this case, if it is found that the crime has been committed in self-defense, the conduct is no longer unlawful and, therefore, not criminal. However, the requirements for self-defense (e.g., immediate danger and proportional response) apply, so previous (not immediate) domestic violence may not apply.

6.2 Domestic violence in the workplace

6.2.1 Can courts issue orders to protect employees suffering from domestic violence?

Yes. The Maria da Penha Law provides that the judge may extend the employment relationship for six months if the woman has to be on leave due to domestic violence. In September 2019, the Brazilian Superior Court of Justice rendered a decision extending the "sick leave allowance" for a victim of domestic violence (STJ, Special Appeal No. 1757775/SP, Rapporteur Ministry of Justice Rogerio Schietti Cruz, judged on 20 August 2019).

Similarly, the second regional labor court (Brazilian appellate courts of the federal specialized court system for matters of labor law) ruled that the employer must allow the transfer of the employee to another subsidiary due to domestic violence (2nd TRT, Ordinary Appeal No. 1000554-59.2017.5.02.0318, Rapporteur Judge Ana Cristina Lobo Petinati, judged on 13 April 2018).

6.2.2 Can departure be deemed "for good cause" if related to domestic violence?

"Good cause" is not a concept in Brazil. If domestic violence occurs, the procedure would be to request a constructive discharge (i.e., wrongdoing by the employer, which authorizes the termination of the employment agreement). Law No. 105/2015 (the Labor Code for domestics) provides in its sole paragraph of Article 27 the reasons a domestic employee can claim constructive discharge and specifically addresses instances in which domestic violence has occurred.

6.2.3 Can family members of domestic violence victims take reasonable leave to help the victim seek treatment or obtain help and services?

Mandatory family leave does not exist in Brazil currently. However, a bill (No. 1876/2015) regulating mandatory family leave is pending analysis and voting in the congress. If the bill passes, the victim could request leave paid for by the Social Security Institute, but this would not extend to family members to support the victims.

6.3 Immigration

6.3.1 Does the law include provisions that are intended to prevent abusers who are citizens or permanent residents from using immigration laws to perpetrate domestic violence against their spouse?

No.

6.3.2 If battered immigrants cooperate with law enforcement in domestic violence, can they obtain immigration remedies?

The law does not address this matter.

6.3.3 Does domestic violence law discuss asylum accessibility?

No. The law does not address this matter.

6.4 Armed forces

6.4.1 Can a victim seek a military protective order if the abuser is in active military?

Yes. In accordance with case No. 0003140-04.2018.9.26.0010, ruled on 7 February 2019, a victim can seek a protection order from the military court against the abuser, but only if both the victim and abuser are in the military.

The court found that both the Brazilian Military Penal Code and Federal Law No. 13.491/2017 provide that the military court has jurisdiction over a case in which the victim and abuser are both in the military.

6.5 Child custody and child/spousal support

6.5.1 Do judges follow special rules to determine custody or visitation of children in domestic violence cases?

The Maria da Penha Law says little about custody or visitation, only that if a judge determines that the victim and abuser must be kept apart from each other as a protective measure, the protective order will not affect the rights regarding child custody or child-rearing pension (child maintenance). The Brazilian Criminal Code, however, expressly provides that a parent or guardian that commits violent crimes against the other parent(s) or guardian(s), or against the children themselves (homicide, manslaughter, bodily injury and rape expressly included) can lose their parental rights. This provision applies regardless of gender, but in practice has benefitted female victims of domestic violence.

6.5.2 Can the judge consider the testimonies of the other spouse and the children when determining custody?

Domestic violence legislation does not provide anything on this matter. Custody is determined on a case-by-case basis and the interests of the child have to be prioritized, so the court will determine whether the other spouse/children should be considered depending on the circumstances.

6.6 Housing rights of domestic violence victims

6.6.1 Does the law include any barriers to prevent landlords from forcing a tenant to move out because they are victims of domestic violence?

Brazilian's tenancy law does not address eviction due to a tenant being a victim of domestic violence. However, the landlord cannot force the tenant to move out solely because they are victims of domestic violence. We were not able to find any court decision directly related to this point. However, it is important to emphasize that most of the cases involving domestic violence in Brazil proceed with judicial secrecy.

Article 12 of the Brazilian Tenancy Law states that in the event of separation from bed and board, divorce or common-law marriage dissolution, the residential lease will remain in force for the spouse that will continue living in the property. That is to say, the law conveys that in the event of domestic violence and/or protective measures (for instance when the judge rules that the abuser will be removed from the home), the lease agreement will remain in the name of the spouse that will continue living on the property.

6.6.2 Does the law allow a tenant to terminate his/her lease early due to domestic violence?

There are no legal determinations or case law legal provisions allowing a tenant to terminate his/her lease agreement early due to domestic violence. However, it is important to emphasize that most of the cases involving domestic violence in Brazil proceed with judicial secrecy.

Brazilian Tenancy Law does state that during the lease agreement term, the landlord cannot reclaim the property or terminate the agreement solely based on the tenants "qualifications" or the fact that the person is a victim of domestic violence.

There is a proposed bill (No. 2510/20) to compel the landlord to report to the appropriate authorities any situation of domestic violence against women that takes place within the boundaries of the residential building.

6.6.3 Can an order exclude the abuser from the residence?

Yes. In accordance with the Maria da Penha Law, there are several protective measures that could be applied against the abuser. Item II of the above-mentioned article, for instance, establishes that the abuser must be kept away from the property, residence or locale where the parties cohabitated in cases of domestic violence. Therefore, a judicial order can require that the abuser be removed from his residence, in order to keep him away from the victim and assuring her housing rights.

In addition, the Maria da Penha Law states that if any risk exists to the life or physical well-being of the female victim of domestic violence, the abuser must be immediately removed from the residence by the judicial or police authority.

This protective measure must be applied to all cases in which the abuser's presence in the residence constitutes a risk to the life or physical or mental well-being of the women or/and her children, until the situation is duly assessed by the judge. The victim can also request for distancing measures, without prejudice to her or her children's rights, as allowed by the Maria da Penha Law.

It is generally understood that the effectiveness of this type of protective measure is clear and material, since the physical removal of the abuser from the residence suppresses acts of violence. Also, the judicial order prevents the removal from being classified as 'abandonment of home' (CAVALCANTE, Elaine C. M. Apontamentos sobre as medidas protetivas de urgência previstas na Lei Maria da Penha, 2006. Available:

https://www.tjsp.jus.br/download/EPM/Publicacoes/CadernosJuridicos/38vd%2009.pdf?d=636688301325046003).

São Paulo State Court of Appeals, Interlocutory Appeal No. 2181604-69.2014.8.26.0000, Rapporteur Judge Alexandre Marcondes, judged on 23 February 2015

Summary: Court decision that ordered the removal of the abuser from the residence in order to protect the victim, on the basis of Federal Law No. 11.340/2006 (Maria da Penha Law).

6.6.4 Can abusers be forbidden by court orders to alienate or mortgage the property in his/her name if it is the family domicile?

Yes. Article 24 of the Maria da Penha Law creates protective measures in order to protect the woman's property. Item II from the above-mentioned article states that selling or terminating a lease agreement for common property in cases of domestic violence is prohibited, in order to protect the woman's assets.

Maria Berenice Dias, emphasizes this point by stating that:

The protective measures not only impose that the abuser must hold back, but also withdraw his capacity to perform certain civil rights that presumably relapse on the common property of the couple or particular assets from the victim. Therefore, any act performed by the abuser infringing the court decision must be invalidated. (DIDIER, Fredie Jr. et al. "Aspectos processuais civis da Lei Maria da Penha." Revista Magister de Direito das Famílias e Sucessões, No. 4, p. 326, June/July, 2008.

Available: http://tmp.mpce.mp.br/nespeciais/promulher/artigos/Aspectos%20Processuais%20Civis%20da%20Lei%20Maria%20da%20Penha.pdf).

All the protective measures, once authorized by the judge, must be transmitted to the Notary Office.

Fighting Domestic Violence

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