real cases versus false allegations

In recent weeks, new rules related to urgent protective measures provided for in Law 1,340/06, known as the Maria da Penha Law, have come into effect, which aims to curb cases of domestic violence.

The first change has to do with the sanction, by President Lula (PT), of a bill that provides for greater ease in granting protective measures – such as removal from home, prohibition of visiting children and provision of maintenance – in favor of women who present themselves as victims of domestic violence. As of April 20, the date on which the law was enacted, protective measures can be granted immediately upon simple testimony by the alleged victim before the police authority or presentation of their allegations in writing. No proof of violence is required at this time.

Another section added to the law says that protective measures will be granted regardless of the criminal classification of the violence, the filing of a criminal or civil action, the existence of a police investigation or the registration of a police report. In practice, it will not even be necessary to register a police report in order for protective measures to be established against the alleged aggressor. The request may be denied, however, if the police authority points out that there is no risk to the integrity of the woman.

“What was going on? Often, protective measures were rejected or delayed in being granted. And now there won’t be a trial. There is no need to be questioned whether there was violence or not, there is no need to be questioned about criminal classification or not, and that is very important”, said Deputy Delegate Ione (Avante-MG) after the approval of the bill in the Chamber of Deputies , in March of this year.

The new law determines, finally, that the urgent protective measures must be maintained “while there is a risk to the physical, psychological, sexual, patrimonial or moral integrity of the victim or her dependents”. In other words, even if there is a lawsuit acquitting the man accused of violence, the measures can continue to be maintained at the woman’s request.

To reinforce this understanding, days after the sanction of the law, the Superior Court of Justice (STJ) determined that women who presented themselves to the Justice as victims of domestic violence and won protective measures must be heard before these determinations are extinguished so that the judge assess its eventual continuity. Until then there was no clear determination on this subject, and the measures used to lose effectiveness if the accused was acquitted or even served the sentence.

Changes are positive to stop violence, but bring legal uncertainty in cases of false accusations

In the opinion of jurists heard by the People’s Gazette, changes in legislation are beneficial for victims of domestic violence, who now have access to more agile mechanisms for granting protective measures against aggressors, which reduces the risk of more serious consequences of violence. On the other hand, the change, by giving even more power to the word of the alleged victim, brings legal uncertainty to cases of false accusations.

“It has a positive side and a negative side. The positive thing is that if the woman is really in a situation of violence and risk, the measure is fantastic. On the other hand, it can be used improperly against ex-boyfriends or ex-husbands in matters of revenge or child custody, for example”, explains Luciana Neves Vidal, professor of Criminal Law and doctoral student in Law. “In this misuse, with false allegations of violence, the person who was accused will face early measures through only summary cognition, that is, where there is no room for contradiction. So it is necessary to debate how far this measure is safe ”, she points out.

For Daniel Crespo, a lawyer specializing in Criminal Law who works in cases related to the Maria da Penha Law, as protective measures were linked to the course of a judicial process, the person identified as the aggressor had the opportunity to defend himself by producing evidence in his favor or presenting witnesses, for example. In the jurist’s assessment now, with the victim’s word gaining more strength by itself, there will be greater legal uncertainty for those accused of aggression.

As there is no need to even file a police report to ask for protective measures, there may be cases that will not be investigated by the police to determine the veracity of the allegations and even so, without hearing the accused party, the judge may enact the measures. “This puts the accused person at a disadvantage, obliged to show that that accusation is not true. It’s almost like a reversal of the burden of proof: the person is guilty until proven otherwise,” he says.

The specialist in Criminal Law explains that, despite the aspect of summary cognition – the possibility for the judge to establish the protective measure without hearing the alleged aggressor – already being a reality prior to the sanction of the new law, the new understanding ends up reinforcing the unilateral character in the scope of the Maria da Penha Law. “It is more difficult for a person to defend himself against an accusation without a lawsuit, having to express himself only in the records of a protective measure, in which the judge is not obliged to call witnesses or hear the accused personally. In the course of a process, yes, there are a series of mechanisms that allow the defense to be made”, points out Crespo.

“The law itself has good intentions, but it turns out that its application is sometimes compromised due to misuse by some women to gain advantages, for example, in separations and custody proceedings”, highlights the lawyer.

Protective measures range from removal from home to monthly payment and account blocking

There are a number of urgent protective measures that can be imposed after a domestic violence complaint has been made. Among the most common are the removal of the alleged aggressor from the home or place of coexistence with the complainant, the setting of a minimum distance limit that the accused of aggression is forbidden to exceed in relation to the woman and the suspension of possession or restriction on carrying a weapons, if applicable.

Another measure that can be applied by the judge is the obligation to the aggressor to pay provisional alimony or provisional maintenance. There are even more possibilities foreseen, such as the blocking of accounts and/or assets and provision of provisional guarantee through judicial deposit. According to the law, the judge can determine one or more measures in each case.

“In the case of moving away from home, for example, there are cases in which the man is returning from work, and a bailiff is waiting for him informing him that he must leave the house immediately. In a real episode of violence this is quite positive, but with the new rules the man can be removed only with the woman’s word, without even having a police investigation into the actual occurrence of the aggression. The protective measure became practically autonomous”, says Daniel Crespo.

Luciana Vidal, on the other hand, considers that the delegate, upon receiving a complaint, should assess whether or not there is enough data to proceed with the request for the protective measure, which may prevent requests for low confidence restrictions from going to the Judiciary. “Being the target of these measures, the accused may question the decision in court. If the payment of maintenance is determined, for example, he must pay at least temporarily, but he may question it during the course of the criminal process, ”she says.