Understand what is at stake in the Bill dubbed Neymar da Penha

the federal deputy Carlos Jordy (PSL-RJ) filed this Thursday (6) PL 3369/19, which is already being called “Ley Neymar da Penha”🇧🇷 The bill aims to increase the penalty for those who make false accusations of crimes against sexual dignity.

In Brazil, the law already provides for punishment for those who make slanderous accusations, but the PL wants the penalty for this offense to be increased by up to a third in cases where the false accusation is related to sexual crimes – such as rape.

In an interview with Broadcast Politico, Jordy revealed that the Neymar case made him decide to file the PL ahead of schedule. “Slanderous denunciations are already serious and absurd in themselves, but when they involve rape, it destroys the life of the accused because there is no crime more abject than this. It makes everyone indignant,” he pointed out.

In fact, lying accusations are indefensible, but the emergence of a PL like this is worrying. This is because rape crimes present a great difficulty in gathering evidence. Numerous lawsuits are filed for this reason, since the overwhelming majority of rapes take place between four walls, without witnesses, and the evidence collected from the victim’s body is not always conclusive. The expertise at the site of the rape is also complicated – and, many times, it is not even carried out.

Therefore, the question arose: how does PL 3369/19 distinguish cases in which there was a slanderous accusation from those in which sufficient evidence was simply not gathered? O MofWoman contacted Carlos Jordy’s office to resolve this issue. Instead of a concrete answer, we were sent the text of the bill.

The controversial excerpts from the PL

To justify the idea that many women lie that they were raped to pursue a certain man, the text of the PL goes so far as to talk about the so-called “Potiphar’s wife syndrome” – explaining the biblical passage that talks about the wife of a general who, when being rejected by a slave, accused him of rape. In addition, the text also suggests that, in cases of reported rape, many men are condemned by the court even when there is no evidence, as the woman’s word carries great weight.

The following passage is also controversial: “It should be noted that the Libelous Complaint will only be configured when the innocence of the accused or accused is proven, either by judicial or administrative decision, innocent him, or by the archiving of the police investigation”. The PL implies that, if the case is archived, it means that the complaint was slanderous.

The weight of the false rape accusation

Should a false rape accusation be penalized more severely than other false accusations? PL 3369/19 argues that yes, based on the assumption that this type of accusation ends the lives of countless men.

for the lawyer Ana Paula Braga, who specializes in women’s rights, this is not true. She points out that crimes such as corruption have the same power to destroy someone’s reputation. In addition, the lawyer also brings up another point: society usually blames the victim for the rape suffered and/or doubts the veracity of her accusation.

“In cases of gender crimes, in which society considers that women are guilty of the violence suffered, or, as the PL suggests, are liars, we have that, in fact, the consequences for the aggressor are no more serious than false charges of other crimes. It is not by chance that we see many men accused of rape still occupying positions of power, including in the Legislative Branch itself”.

And, after all, does the lack of evidence favor the victim or the accused?

“The acquittal of an accused person in a judicial sentence or the archiving of an investigation can take place for several reasons, not specifically his innocence. One of them is the absence of evidence, in which the principle of in doubt pro reo (when in doubt, in favor of the defendant)🇧🇷 The lack of evidence does not mean, however, that the crime did not exist and that the complaint was false”, says Ana Paula.

She also points out another worrying point: the text of the PL does not deal with the assumption that it is necessary to prove the complainant’s bad faith, it only implies that the lack of evidence would prove that the complaint is slanderous. “Adopting such a parameter as a rule or as an indication that a denunciation was slanderous, especially in cases such as crimes against sexual dignity, most of which are archived precisely for lack of proof, is to muzzle women and reinforce the rape culture. Complaint without sufficient supporting evidence should not be confused, under any circumstances, with complaint manifestly in bad faith🇧🇷 It is this element, bad faith, that would need to be proven”.

What does Carlos Jordy say?

Bearing in mind that the text of the PL presents questionable points, we tried once more to speak with deputy Carlos Jordy. On this second attempt, we were successful.

In conversation with MdeMulher, he defends the text saying that the PL does not intend to change the criteria of the law that typifies the crime of slanderous denunciation. It only aims to increase the penalty in specific cases. Therefore, the parameters that indicate how the law is applied do not need to be included in the PL. “It is the judge who makes the value judgment on the case in view of the evidence he obtains”, he points out, citing the Article 339 of the Penal Code🇧🇷

Soon after, Jordy says he understands the fact that there is a lot of difficulty in gathering evidence in cases of rape, but he goes back to defending that men need to have extra protection when they are accused of this crime.

“If a person points out that someone committed a rape and there is no proof, nothing, no proof… in that case it is complicated. It is more appropriate that there be archiving. This crime, in fact, is an intentional crime, you have to evaluate this issue of bad faith. In the same way that you fear for the woman’s situation, that she may be left unguarded in this sense, that if she does not have evidence she may incur this crime, the citizen who is falsely accused of rape, and there is no evidence against him, is also left unguarded🇧🇷 Because your life is devastated. So, simply the crime of slanderous denunciation that it would incur, is not enough in that sense”.

We also asked the congressman about the principle of in doubt pro reo (when in doubt, in favor of the defendant), raised by lawyer Ana Paula Braga. According to Jordy, “the issue of archiving the police investigation is already being applied as a subsidy for slanderous denunciation”. He claims that one of his family members has already been accused of racism and that, due to lack of evidence, the whistleblower ended up being framed for the crime of slanderous denunciation.

Lawyer disputes deputy’s assertions

Faced with all this, Ana Paula stresses again that the issue of lack of evidence cannot be used to frame someone in the crime of slanderous denunciation. “When you take the criminal type, it doesn’t specifically say that a filing case is going to be considered as a false report. Because a dismissal or an acquittal can be given for numerous reasons that are not necessarily the non-occurrence of that crime”.

The lawyer also draws attention to the fact that a law such as the one proposed in PL 3369/19, if approved, could interfere with the way judges interpret the legislation. “When we are going to apply a law, there are several exercises that judges need to adopt – and one of them is an interpretation technique that we call hermeneutics. Within hermeneutics there is, for example, ‘what is the intention of the legislator when creating a norm’. So, if there is a law that is confusing at the time of application and that you cannot understand very well what its purpose is, the judge has to do this exercise to understand what the legislator’s will was at that time. So, although it is not binding, this justification is worrying, first because it demonstrates the objective behind it and, second, because if a judge wants to use the will of the legislator, this could be harmful”.

Therefore, we can disagree that the way the PL was written is unimportant – under the justification that the law of slanderous denunciation already exists and that it is the only one that will govern the judge’s decision. “To be a slanderous allegation, you need to prove that there was bad faith in that false allegation and not simply that the allegation was not proven. But he writes his entire justification in a way as if simply the lack of evidence is enough to qualify as a slanderous allegation. So he basically assumes that almost all rape allegations are false. That is the question”.