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The crime of threat in the Maria da Penha Law

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Crime of threat

Crime of threat

Under article 147 of the Criminal Code, in the chapter dealing with crimes against individual freedom, the offense of threat is defined as ” threatening someone, by word, writing or gesture, or any other symbolic means, to cause him unjust evil and serious “. From the reading of this article, in order to configure the crime of threat the evil must be unfair and serious, that is, it is necessary to analyze in the specific case to verify if the promised evil reaches an interest of relevant importance for the victim. It can be seen, therefore, that the legal good protected in such cases is the freedom of the human person, especially with regard to peace of mind, peace, tranquility and a sense of security (MASSON, 2015).

With respect to criminal action, it is publicly conditioned to representation, ie it is necessary to have representation of the offended person or those who have the capacity to represent it so that the complaint can be offered by the Public Prosecution Service. Another important point is the fact that it is a crime of less offensive potential, and it is possible to apply Law 9.099 / 95. Thus, as a general rule, it includes composition of civil damages and, if legal requirements are present, the criminal transaction.

It occurs that, according to the recent Supreme Court Order 536, in the offenses involving the Maria da Penha Law, it is not possible to apply the conditional suspension of the process and the criminal transaction, institutes provided for in Law 9,099 / 95. Thus, even when the crime committed is a threat, punished with a penalty of one to six months imprisonment or a fine, in case of representation there will be denunciation and procedural instruction, without the possibility of being applied any decriminalizing institute.

This question, although pacified, still raises some questioning, insofar as

“It is possible to think that the procedures and procedural outcomes guaranteed by the Special Courts would fit more to the perspective of women seeking the DDM than those offered by the Common Court. (…) Women who denounce their aggressors – in case of marital violence – expect them to be reprimanded and advised to stop the assaults, but incarceration is not part of this solution on the part of the victims. The Special Courts seem to meet precisely this expectation: from negotiating the end of violence without the threat of condemnation “(IZUMINO, 2002, pp. 282-295).

In this sense, would it be that with the implementation of the Judges of Domestic and Family Violence Against Women, specialized in this service, would not it be the case to invest in such institutes? It is not merely intended to depenalize, but mainly alternative to punitivism, which does not effectively solve the cultural problem of violence against women.

This is the case, for example, of the crime of threat under the Maria da Penha Law. Such crimes are committed, as a rule, within the family, without witnesses, and there is only the word of the sedentary victim and the alleged perpetrator. In the overwhelming majority of cases it takes up to years for procedural instruction to occur. When the cops who attended the case are listed as prosecution witnesses, they hardly remember the episode. The victims themselves often do not remember the details, which unfortunately need to be recalled at that moment (the so-called revictimization taking place).

Criminal conviction

Criminal conviction

Thus, criminal conviction is almost unfeasible (or should be), since the victim’s word is not supported by any other means of proof to support the condemnatory decree, notably because of the principle of in dubio pro reo. Nonetheless, according to the case law, ” the threat to apply the type of article 147 of the Criminal Code, must be real, concrete and serious ” ( TJRS Criminal Appeal No. 70061755393.) Judgment on December 10, 2015), and when the doubt is established due to the weakening of the probative set, the presumption of innocence prevails.

The question arises: would it not be in these cases that the possibility of conciliation or the application of the conditional suspension of the proceeding (with conditions that have a relation to the facts, according to what is allowed in Paragraph 1 of Article 89 of the Law No. 9,099 / 95)? Without the intention of delegitimizing a great achievement of the feminist movements, it would not be the time to verify statistically the feasibility of insisting on punitivism in cases of violence against women, without thinking about effective solutions and that generate a cultural change, so that it is not necessary the intervention of an authority (also patriarchal) in our conflicts ( see ALIMENA, 2010)? It is an absolutely complex and conflicting subject for those who are engaged in both the feminist and the anti-punitive movements, and it is also for this reason that it deserves attention, research and reflection.