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“Bolsa Estupro”: Understand What PL 5435/2020 Is About And Why It Is A Huge Setback For The Fight For Women’s Rights

During the month of March, there was a great movement in social networks, especially of women, against the PL 5435/2020, nicknamed "Bolsa Estupro," which was proposed by Senator Eduardo Girão (PODEMOS - CE) in December last year. The project has several legal irregularities, and also has the intention to prohibit the right to abortion in cases already provided by law: humanitarian, necessary, and in case of anencephalic fetus.

To discuss this subject further, we talked to the lawyer and women's rights specialist Carolina Patitucci. She is an activist for the Women Lawyers Movement, was president of the commission OAB Mulher in the city of Volta Redonda, and is vice-president of the women's commission of the Brazilian Institute for Legal Research.

What is a bill? What is the process it goes through from its creation to the moment it can come into effect?

CP: "The Legislative branch has the prerogative of proposing a bill, dealing with various matters. The senator, congressman, or even the councilman in the municipality, can assemble the bill. This does not mean that it will come into force directly, because at this point it is just a draft. Within this process, there will still be a rapporteur who will take care of everything.

In the Senate, there is a constitutionality control, which checks if there is already a similar law or if the proposal hurts, in some way, something already foreseen in the Constitution. So, it goes through a vote in both houses, the House and the Senate, and it has to be approved by a majority in both. In the case of a federal law, as is the case of PL 5435/2020, it still follows for sanction by the Executive power, represented by the president.”

What is the current legal status of abortion in Brazil? If this bill is approved, what are its implications for the existing law?

"Actually, this bill is from Senator Eduardo Girão (Podemos), and he says that the law is the 'Statute of the Pregnant Woman'. It is not a law that will deal only with abortion. But, I believe that the real intention of the legislator was to prohibit this issue.

When you start reading the bill, you find a beautiful, legal idea, which brings rights and protects the life of the pregnant woman and of the fetus. However, in my opinion, all this is just a make-up, because on this issue of the rights of pregnant women there are already several other laws. In reality, this law does not innovate any rights or benefits, it only approaches the abortion issue in a different way.

How it works today in Brazil: abortion and self-abortion are crimes, forbidden, but there are some exceptions. Humanitarian abortion, which are those in case of rape, necessary abortion, which is when the pregnant woman's life is at risk, and what was approved in 2012 on the issue of anencephalic fetus.

Prohibiting this abortion in cases of rape, in reality, is to overprotect the fetus and hurt this right of women, because we have to think that this is unconstitutional. The Constitution is our highest law, there is a hierarchy, and in the first article it talks about the dignity of the human person. If you force a woman to generate a life originating from a violent action, from an intentional crime, which is rape, you are nothing more than forcing and obliging her to be psychophysically hurt, even, because it involves the mind and the body.

The woman is treated as if she were a machine. A man comes along, rapes you in an aggressive and biological way, and you are still forced to carry the pregnancy to term and generate that life, being that it was not an act that you allowed. It's very serious and violent for us women."

Why is discussing the issue of abortion so complicated here in Brazil? We see several Latin American countries, such as Argentina and Uruguay, making great advances within the issue, and the feeling is that Brazil remains stagnant in the same place.

"I think it's because of two issues. First, conservatism. Here we have the idea of family, of good customs, and this ends up bordering on the religious issue. It is important to say that it is no use being against or for abortion. Being against it doesn't mean that it doesn't happen, and if it is something that already occurs, it is an issue that should involve public policies, because many women lose their lives because the State doesn't welcome this portion that decides to have this procedure. Does abortion exist? Yes, clandestinely? Yes, but Brazil still has this conservatism.

The second point is the participation of women in spaces of power. If we look today at our legislative and executive branches, whether at federal, state or municipal level, we can see that men occupy most of the spaces in these places. So, they are the ones who make the laws. There is still the question of structural machismo, of the participation of religious groups.

So, besides conservatism, many men have the power of the pen. This is not a matter about them. For example, who created the pregnant woman statute was a man. Of course there is no rule or law that a man cannot create legislation for women, but who has the sensibility and knows the real needs of women to create these projects? It would be us women, because it is our place to speak, we go through it.

From the moment we don't occupy these places effectively, we will go backwards in relation to these cases. Only then will public policies aimed at women be created, because men don't have the sensibility, apart from the machismo issue, to approve legislation related to abortion.

It is not a question of the senator being for or against abortion, of the principles of each one's faith, this is not the issue. It is to treat the issue as a public policy issue, it is a public health issue, it has to have a public interest and all other private, religious, good manners and personal interests should be left aside.

It is only men, white and straight, who occupy these places. It is not that we hate white and straight men, but I believe that a democracy can only be effective when all people who are part of society occupy these spaces. How are we going to create public policies for these underrepresented groups without them being present in the discussion spaces? There is no interest, and the issues are left aside."

Senator Simone Tebet (MDB/ MS) is writing a substitute text and has promised to remove the article that concerns the prohibition of abortion in cases of rape. In this case, the major impact of the project would be on the financial aid to women who have been raped. What are the implications and impacts of this financial aid for women? How can it help and how does it change the scenario we have today?

"The senator has already stated that he will withdraw article 11 of the bill, which is the one nicknamed the rape scholarship. For me, the serious issues of this bill are many, such as the issue of aid, because it can create a stigma, a prejudice, since there is always the issue of blaming the victim. She was raped, she was where? With what clothes on? Unaccompanied? Now, this scholarship will aggravate this situation even more, with the idea that the woman wanted to be raped in order to receive the financial aid.

So, you end up forcing the woman to take this traumatic pregnancy further, within a society that blames the victim and demonizes abortion, because she is poor, and we know that what is the current reality of the country, there is no employment, no public policies, no aid, nothing.

But, the most serious thing for me in this article is that it talks about the genitor. It treats the rapist as the genitor, and the mother will be obliged during the entire gestation period to inform the abuser about all the pregnancy monitoring. So, there is no point in just removing article 11 where it talks about aid and abortion and let the legislator allow this father to have a family power over the child.

Family power is a nomenclature brought by the Civil Code and houses all the rights and duties that the parents have over the minor child. But, this PL 5435/2020 is so crazy that there are other laws that say that this power can be removed from the parents if they commit intentional crimes, subject to imprisonment, against family members. Then, this "Statute of the Pregnant Woman" appears, which does not respect the hierarchy of laws and states that this father has the right to accompany the entire pregnancy and the duty to pay the pension. It doesn't mention the nomenclature, but it is giving family power to the rapist. One law is not matching the other, the procedure is wrong, it is surreal even.

And it doesn't end there, there are other absurd issues. He confuses the nomenclature "unborn" with "child". Already in the first article of the project, he talks about "unborn child", but our civil code differentiates the issue of the child from the unborn, since the latter has expectations of rights, he is still a fetus that is being generated, he doesn't have a legal personality. The child, on the other hand, has rights, a legal personality, a name, a social security number. So, even the terms are being used in the wrong way. When a woman commits self-abortion, the penalty is much lower than if she murders a child. The law itself protects the child much more than the unborn child, there is a difference in penalty. This is how we can understand the real intention of the legislator in using these wrong nomenclatures.

Furthermore, article 8 of the bill holds third parties responsible for committing something against the unborn child, still using the wrong term. This can generate a serious issue against doctors, who can be held responsible if they perform a necessary or humanitarian abortion. Thus, no professional will want to perform these procedures, which are legal and provided for by law. You can see there the real intention of the legislator. I have never seen a bill hurting so many ordinary laws at the same time.”

The framework of rapes in Brazil includes, in great quantity, underage girls, around 14 years old. How does this bill affect this portion?

"The penal code allows minor girls to abort with the authorization of their legal representatives, which are usually their parents. This statute does not prohibit the practice of abortion, because it does not have that power, this law would not be the necessary means to extinguish the code that already exists in the penal code. It only says that, in case she gets pregnant, she will have a greater aid from the state, it will preserve her. The article is not changed, abortion is not forbidden, but I imagine that it is the first step towards this, it will open the doors for change."

How far are we from legalizing abortion in Brazil? Under what circumstances do you imagine this could happen?

"Unfortunately, we are still very far away. From the moment that women are not occupying this space of power to be able to have the autonomy to discuss such issues, we are still very far from debating the issue of abortion. It is not a simple discussion, it has to go through the approval of two houses, the presidential sanction, apart from the scientific and medical studies on the subject.

So, I believe that we are still very far from achieving legalization, but we are still far from even being able to start a discussion about it. Brazil shows itself to be very modern, open to new ideas, but in truth it is still extremely conservative and there are many limitations. This is due a lot to who occupies these spaces of power, since they are there as a reflection of the whole society. Without the vote of the majority of the population, they would not have been elected. It is the will of the majority, still.”

Within the whole process that involves a bill, how can we, as citizens, fight so that bills like these are not approved? Is there any legal form of popular participation in this process?

"In case the law is approved, there are still means, such as filing a class action suit with the STF. Generally, those who are able to do this are parties, associations, which can file and say that the law is unconstitutional and that it violates principles. So, there is still hope that it can be stopped by the judiciary.

But, if you type the number of the bill in the federal senate on Google, you are forwarded to the site and there is a poll if you agree or disagree with the bill. Popular pressure works, we think it doesn't. The senator proposed and the project had such negative repercussions that he has already gone back to make corrections and remove article 11. This movement from us makes a lot of difference. The difference in the poll for this project was more than 200 thousand people who voted that they didn't support it, that's a lot.  We can help with this, voting, spreading the word.”

When we see a bill like this, in 2021, with this amount of absurdities, what does this mean for the struggle of women? Even more so in a decade when social demands are so strong, and the feeling we have is that the whole world is moving forward and Brazil is only moving backwards.

"It means a huge setback in women's rights. We have the Maria da Penha Law, which is considered one of the three best laws to combat violence against women in the world. So, imagine, we have this law that is wonderful, there are several advances that have been happening, every year we have positive changes in it, and it keeps getting better, and a "Statute of the Pregnant Woman" is created, which is not about women. The real goal is to prohibit legal abortions and further stigmatize the violated woman.

The part about pregnant women is just to make up, it doesn't innovate anything. They are beautiful words, but all that already exists in Brazilian legislation, it is very dangerous. It is dangerous because they can approve it thinking that it is unimportant, "it is just an article about the rape-scholarship", "it only has the issue of the rapist as the genitor", and a huge law stuffing sausage. To have this in 2021 is a huge step backwards, given all the advances that are happening in relation to women's rights in Brazil, as I have already mentioned about the Maria da Penha law.

As a lawyer working in the area, I have never attended this many women who are suffering with violence like in this pandemic period in the city of Volta Redonda. Sometimes, I leave the police station crying. You get a call, it is one more woman suffering, one more woman that is about to be killed. It is fighting every day against the system, against the violation of rights, against abusive men and against the creation of these absurd laws. The burden on us women is very big, it seems that all the time they are trying to kill us, to violate us. It's as if our body is public."


The article above was edited by ​Amanda Ardigó.

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Anna Casiraghi

Casper Libero '23

Estudante de jornalismo, apaixonada por política e fotografia.
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