1. Is a huge problem. It is partly a result of their workload that the judges don’t insist that the defendant is brought before them, because it is just quicker to look at the paper-work. Also there aren’t enough public defenders and so although these should be petitioning for release they don’t – or don’t do it effectively because they are unlikely to have read the case notes. Basically, the main factor that will depend on whether or not someone gets released at this stage is the gravity of the charge.

2. Is the issue where I have some sympathy for Kathleen’s initial argument (although not her later posts). A victim’s consent is not always needed for a prosecution. For example, if someone has suffered physical violence and this can be backed by witness statements and medical evidence, the testimony of the victim may not be crucial for a conviction. This was an issue – with regard to DV - that we worked on back in the UK because sometimes women may be intimidated out of pressing charges. So removing their ‘consent’ to prosecutions can be a good idea in certain cases. What the new law does is lower the threshold where prosecutions can take place without consent so that rather than just covering cases of serious violence it covers ‘common assault’ as well (ie a slap, a shove, a light blow, etc. which is certainly a crime, but previously would have required consent). This is the change that my wife is so concerned about because by ‘up-grading’ the seriousness of this offence it requires more prosecutions to go ahead, where non-punitive measures may be more effective (mental health treatment, counselling, drug or alcohol addiction services).

3. This is complicated – and part of the main focus of my current Access to Justice project. The courts have extremely wide-ranging powers to order pre-trial detention and frequently seem to do so even when the actual offence does not carry a custodial sentence. Along with the massive delays that take place at all points within the system (we recently had a guy who has been waiting 14 years for his trial) this has led to a huge explosion of the numbers being held in pre-trial detention.

BTW, ajay, I believe you are misusing the term “protective custody”. People are taken into protective custody to protect them from third parties, e.g., witnesses against organized crime figures, not to protect others from them. Protective custody in this case would mean locking up the victim to protect her from the alleged abuser, something no one here, including, I assume, you is advocating. What we are talking about here is preventative detention.

However, the discussion has shown things to be a bit more complicated than I thought on Conor’s original post.

1) It seemed people were being incarcerated with no due process. Well, a judge signs off, but it sounds very cursory, so let’s say with minimal due process.

2) The victim’s wishes are disregarded in the decision to prosecute. Apparently not, by Conor’s later comment, but I still wonder if the victim’s objections have any weight in the initial incarceration. Conor, does the judge signing off on the initial detention get told whether the victim desires prosecution, and, if so, are they expected to take this into account?

3) The rationale for holding the alleged perpetrator initially includes “preventative detention”. That is to say, the considerations of law include not just the initial estimate of whether a law has been broken or prosecution will proceed, but some opinion (from the cops? the judge?) on whether future offenses are likely.

In fact, one of the distinctive things about criminal cases in most countries is that they are brought in the name of the Queen (or whoever), not the name of the victim. It’s R. v Accused, not Victim v. Accused.

(In England, up until the 1850s odd, criminal cases were brought by private persons, but not needfully the victim. Even if they were policemen bringing the case, they were just exercising their rights as private persons. This was admittedly a bit odd.)

You are assuming bad faith for no reason I can see. I don’t think one should always assume good faith in debate, but there is only a limited number of individuals (Tony Blair, David Kane, etc) whose past behaviour justifies shoot-first rules of engagement. Conor is not one of them.

More substantially, I would consider it axiomatic that proposals to increase the power of the state to incarcerate always lead to more incarceration, whatever else they may achieve or not. They are different from many other increases in state power, for example, in the power to regulate urban development or to provide medical care; they belong to a class of powers that are always used, because they cater to the fundamental imperatives of power itself. The state likes locking people up and will always happily do so, no matter what the resource constraints are, because the problems of insufficient resources here fall on the prisoners and prisoners are ipso facto bad people. They’re in prison!

As Jim Henley said, John Yoo didn’t suggest raping terrorist suspects’ children, because state agents don’t aspire to be paedophiles but they do aspire to have unlimited power to interrogate people they arrest by whatever means they like. Similarly, cops love to arrest people and lock them up, and if you give them further powers to do so they will use them, to what end they like.

Police powers, migration control, mental health, secrecy, prostitution, some workplace issues – these seem to be a brief list of topics where the state can be counted on to use whatever powers it is granted to the fullest possible extent, but not at all to the original purpose. This is clearly because they all bear on its relationship with The Other.

Consider the UK’s Prevention of Harassment Act 1997, which was marketed as “anti-stalker” legislation. It defines harassment as conduct likely to cause alarm or distress to a third party more than once. This has since become a common means of locking up political protestors – the police simply decide that your behaviour causes them alarm or distress, and it’s off to the Bridewell. Among celebrated cases, that of Lindis Percy stands out – she was accused of causing alarm and distress to the United States embassy, a first in ascribing emotion to a building, and eventually acquitted. If this is a problem in Britain, which I persist in believing to be a stable democracy with a reasonable judicial system, it is surely one in Brazil.

Police powers are always used, but not necessarily for the stated purpose. I don’t yet know how a mean Brazilian cop would repurpose this power, but then I’m not one; however, I am confident of their malicious creativity.

Further, isn’t it almost the crucial issue in any question of development that it is very easy to legislate but hard to implement? Yesterday’s Guardian reported in detail on the problems of distributing medicines in Uganda; they are certainly bought, and shipped to Entebbe airport, and delivered to the national medical stores, but they rarely make it to prescription without going out of date in a shed or being misappropriated.

The article then makes a point about international organisations – Oxfam and Amnesty – advocating for changes to the laws or constitutions of other countries on issues which are beyond their core competencies. I would like to see Amnesty do more work on women’s rights and criminal justice in Brazil, rather than diverting their scarce resources into vaguely-defined campaigns on other issues.

I did, and was clearly meant to be included in the “fan club.”

A post that argues that laws intended to prevent domestic violence are problematic because they put people in Brazil’s shameful criminal justice system, while not mentioning defendants in the criminal justice system for other reasons, suggests that the criminal justice system is tolerable for the purpose of serious crime, but treating domestic violence as serious crime is too much.

Except the specific protestation was: Lack of appropriate social services means she can rarely refer them anywhere and the new law is likely to lead to a dramatic increase in the number sent to prison. There is at least a debate to be had about whether this is the best way of tackling the problem.

That comment doesn’t tag domestic violence as an unserious crime. It does suggest, correctly, that many perpetrators of domestic violence are alcoholic, drug users, or in need of psychiatric care (which doesn’t relate to my point about right to a speedy trial). In other words, an investment in social services which aim to reduce alcohol abuse, drug abuse, and psychiatric needs might have a better reductive effect on domestic violence occurrences than this law we’re discussing.

As for my point… how to say this. Suppose someone proposed a law which doubled the prison sentences of murderers and burglars in Brazil. Given what I know about Brazil’s criminal justice system, as discussed above, I definitely would have voiced the exact same protest to this hypothetical change in law. I would have the same problem with it: domestic violence is indeed serious crime IMO, and the proposed measures (longer sentences, less speedy trial) are not an appropriate solution to a serious crime problem.

Perhaps that no one did that? If the post were about Brazil’s shameful criminal justice system generally, I don’t think it would have raised any hackles. A post that argues that laws intended to prevent domestic violence are problematic because they put people in Brazil’s shameful criminal justice system, while not mentioning defendants in the criminal justice system for other reasons, suggests that the criminal justice system is tolerable for the purpose of serious crime, but treating domestic violence as serious crime is too much.

1. where have I said there is a choice between ‘women’s rights vs. democracy, women’s rights vs. prisoners, women’s rights vs. poor people’? Please point out the specific line where you get that from?

2. where have I said domestic violence is not a big deal?

3. where have I said women reporting such violence should not be believed?

4. where have I argued for ‘the presumption that violence against a wife or girlfriend is different and should be treated differently than violence against any other category of person’?

I have not said anything like that here and I have referred to you a book in which I argue the exact opposite.

You telling me that I am ‘not credible on the subject of women’s issues’ and I am a ‘classically anti-feminist’ is a content-free insult. It would be like me refering to you as an out-of-touch middle-class north American who has racist views about Latin American men. I am not throwing such accusations at you (the point is purely illustrative purposes) but why do you have so little else to contribute to this discussion?

The only point that you seem to be grasping onto from my original post is that the new Brazilian law (which you clearly have not read) ‘imposes tougher prison sentences on offenders, provides for preventative pre-trial detention and enables prosecutions, without the consent of the victim, even where the violence has been of a very minor nature’ and that this might be a cause of concern in a country with such a dysfunctional criminal justice system as Brazil.

The reference to ‘a very minor nature’ is to put into non-legal terminology an offence that would be the equivalent a blow, shove, or slap that caused minor bruising. I am not trivialising this type of violence. I am just saying that is a different – and less legally serious – type of offence than grevious bodily harm, malicious wounding, attempted murder or a homicide offence. What is contentious about that point?

Can I now ask you the same question that I put to you above again. Why do you think that HRW were right to publish a report on the treatment of sex offenders in the USA, but yet you so strongly (and abusively) oppose my proposal that Amnesty produce a similar report about Brazil?

(I also didn’t understand this. I personally think domestic violence should be treated differently, and in fact more seriously with stiffer penalties. The Brazilian law also treats violence against a domestic partner as different from violence against any other category of person. You are now saying this is a bad thing?)

Well, you could explain what’s wrong with protesting that accused persons are spending months in jail before their arraignment and trial. I still don’t understand what you see wrong with protest for the right to a speedy trial.

I would want the same right for alleged murderers and alleged terrorists, and I don’t think the right to a speedy trial with adequate legal representation should ever be abrogated.

I guess I can concede, if the right to a speedy trial must be revoked for some class of offenders, then those the class should be those who commit domestic violence. But I still don’t comprehend the desire for that revocation.

Kathleen, if you come across a book called Human Rights Human Wrongs, which I wrote 15 years ago, you will actually find exactly the same arguments that you put forward above on violence against women in the public sphere and the need to reform laws on DV, rape and homicide.

http://search.barnesandnoble.com/Human-Rights-Human-Wrongs/Conor-Foley/e/9781854890771

It is actually a fairly standard text book on human rights courses

http://www.unu.edu/ic/spring99/ic803.html

Salient: yes one of the key failings is a lack of public defenders (Sao Paulo only has 37 to cover all of the prisoners in the state) but also a massively over-worked judiciary (and police who use torture during interrrogations on a systematic basis, etc.). One of the reasons why there are not enough judges is that the legal system generates a huge amount of cases. This is partly because the creation of a large number of new (and more serious) crimes in recent years – which Law Maria de Penha adds to – and partly because the system provides numerous rights to appeal, which are good in theory, but are really only available to those who can afford expensive litigation in practice. The result of all this is that the rich enjoy impunity (very few people end up in prison for corruption despite its endemic influence) while it is the poor who end up in jail. Of course this is not unique to Brazil but it happens to an exagerated scale here.

Eh. If you had said “neither foreign interference nor strict DV laws but insufficiently many judges and/or unsatisfactory availability of public defenders” instead of “lazy, inept judges” this would make sense, but it’s not the job of a judge to provide defense council to defendants, and there’s no indication given anywhere that judges are sitting around twiddling their thumbs instead of processing cases about as quickly as it’s reasonable to do.

That bit of anti-judge-trolling aside, I think I’m in overall agreement with you—the impropriety of any law that “provides for preventative pre-trial detention” is directly proportional to the typical amount of time elapsing between arrest and trial.

The pre-trial detention provision of this law might not be so bad, if arraignment occurred quickly, and if the identified victim has the opportunity to insist that the charges be dropped. [ Note: the latter might not seem quite as important as the former, but there ought to be some way to petition the courts as an identified victim and say “hey, this is a mis-identification and I protest it, I am not a victim of this.” ]

Do Brazilian prosecutors not have the discretion to drop cases which they do not think are winnable? That would be rather odd.

Unfortunately, there are nowhere near enough public defenders in Brazil to attend to people’s right to a defence and so judges tend to give considerable weight to the gravity of the charges against the accused when deciding whether to release them. One of the impacts of the Maria da Penha Law is that increases the severity of a number of categories of charges and so increases the likelihood that someone charged with them will remain in prison prior to any serious consideration of their case. This is a general problem of the criminal justice system

Frankly, it sounds like the main problem of the Brazilian justice system is neither foreign interference nor strict DV laws but lazy, inept judges.

57: the advocacy is not in the rich western countries where Oxfam’s supporters are based and whose governments are (arguably) implementing harmful policies and practices. Instead they are telling people in poor countries what to do.

Oxfam does actually advocate for policy changes in rich western countries where its supporters live. One example: debt relief for poor countries.

Salient—Brazil’s overcrowded prison system has not been caused by this recent piece of legislation.

I’m not worried about the prisons.

People should have a right to a swift trial, the right to plea their case and attest to their innocence or guilt before a judge / a jury of their peers. The concern is as I stated above: locking up people who are accused of (3) for months before they have a trial or access to any legal recourse, even if the identified victim protests that the arrest is unwarranted.

Sounds very problematic—even if the jails in Brazil were empty, I’d be upset.