Filling the gaps: the latest sexual harassment law in Brazil

[AMICUS CURIAE] According to an ActionAid research, 86% of women reported that they have been victims of sexual harassment in public spaces in Brazil. In terms of Brazilian laws, there was a legislative gap regarding sexual harassment acts which are less severe than rape but more than insult to decency. In September 2018, a new law came into force in Brazil aiming to tackle this gap.

The law defined sexual harassment as the practice of lewd acts against someone without her or his consent. Previous laws focused on lewd acts committed by violence or a serious threat, which ended up not including a variety of cases such as putting a used condom into someone’s bag or even ‘revenge porn’, which consists in distributing sexually explicit videos or images without consent as a way to blackmail or take revenge on an ex-partner.

This law directly criminalised the distribution of rape videos and images, as well as any sexually explicit materials of individuals without their permission. Those behaviours were not mentioned in previous laws, but are now legally reprehensible. Anyone who commits one of the described crimes incurs 1 to 5 years of prison.

In addition, the law raised from one up to two thirds the penalty for committing rape if the crime was committed by two or more people, or if done with the goal of punishing the social or sexual behaviour of the victim, i.e. ‘corrective rape’. The last is more often against the LGBTI community.

Nonetheless, the jury is still out on which lewd acts will be regarded as sexual harassment acts. Courts are expected to better explore that concept throughout their decisions. However, in societies in which harassment is normalised by culture, one might question if the judiciary is truly prepared to deal with gender and harassment issues in order to properly judge and punish sexual harassers.

Overall, the new sexual harassment law is clearly a legislative improvement; however, unfortunately, laws are often not sufficient to change behaviours. In order to make it a truly safer environment, especially for women, patriarchal cultures require deep cultural changes to stop normalising harassment. That said, this law is expected to, at least, contribute to reduce impunity in sexual harassment cases.

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