1 of 3 Ana Hickmann and Alexandre Correa in the picture from December 2014 — Photo: Celso Tavares/g1 Ana Hickmann and Alexandre Correa in the picture from December 2014 — Photo: Celso Tavares/g1
But how does the Maria da Penha law ultimately work and why didn’t it speed up the model’s divorce? Understand the following:
Changes to the Maria da Penha law
The Maria da Penha Law No. 11,340, adopted in August 2006, has instruments to protect victims who experience violent situations, be it physical, sexual, psychological, hereditary or moral. The law is also a reference in the fight against violence against women in other countries.
Following a change made in 2019, women who are victims of domestic violence and want to expedite their divorce, separation or dissolution of a committed relationship can now apply for the procedure to the Domestic Violence Court.
The prosecutor of the Ministry of State of São Paulo (MPSP), Celeste Leite dos Santos, explains what has changed in the law after the changes that came into force in October 2019:
Case of Ana Hickmann and Alexandre Costa: What is known
“The change in the law allows the judge of the Domestic and Family Violence Court to order a divorce himself. In situations where there is no aggression against women or children, the divorce is regulated by the family court. This change takes into account that the victim is at risk and the separation process needs to be faster,” explains Celeste.
According to the public prosecutor, separation, divorce and custody issues, among other things, can be requested in order to distance oneself from the alleged perpetrators.
“The protective measures are now autonomous. This means that they are independent of the existence of a police investigation or criminal proceedings. The public prosecutor can request these protection measures taking into account the risks to this family,” he explains.
However, according to Celeste, property division issues will continue to be dealt with only in family court.
“Protective measures serve to immediately remove the victim and the aggressor and are aimed at the safety of the victim, but they do not relate to civil measures,” he concludes.
Two weeks after Ana Hickmann filed a police report of domestic violence against her husband, she filed for divorce from Alexandre Correa, citing the Maria da Penha Law. However, the moderator’s request was rejected by the judge of the 1st Criminal Court of Domestic and Family Violence in São Paulo. The case is therefore handled by the family court.
According to experts interviewed for the report, the judge assumed that the divorce application could not be assessed by the domestic violence court due to its complexity, as it also included issues of property and child custody. It is worth noting that the law can be interpreted differently from judge to judge.
Lawyer Gabriela Sousa, specialist in feminist law and president of the Brazilian School of Women’s Law (EBDM), explains that there has been a constant generalization of justice by responding to requests from women based on the Maria da Penha law called, not analyzed by the court against domestic violence. and who want to speed up a divorce, separation or dissolution of a stable relationship.
Ana Hickmann speaks out after her divorce application was rejected based on the Maria da Penha law
Nevertheless, the expert assumes that the decision in the moderator’s case was correct given the complexity of the process.
“There are issues that are likely to require expertise, breaches of confidentiality and many things that the Special and Criminal Court is unable to do. It is not a special court, it is a multiple court that deals with violence and ordinary crimes that cannot be related to domestic violence. From the publications in the press it appears that the judge does not hide the question of the existence of the law that gives the hybrid character, but he understands that in this case it is due to the complexity that it is necessary to go to the family court ” , he explains.
According to the lawyer, it is necessary to interpret the case with its specifics rather than generalizing it. “Unfortunately, the judiciary makes it a rule not to use hybrid justice, which harms many women, but individual analysis of cases is essential,” he adds.
Lawyer Tais da Hora, who also works in cases related to genderbased violence and women’s rights, explains that when divorce cases are transferred to the family court, the court often makes incorrect decisions.
“This is a reality in violent courts. Judges understood and applied the law based on their own beliefs. However, the jurisdiction of domestic violence courts stipulates that judges have the ability to evaluate divorces, maintenance claims and complaints of violence from a gender perspective.”
She notes that the Maria da Penha Law has a hybrid character and has the particularity of protecting women victims of domestic and family violence in both the criminal and civil areas, especially in actions related to the subject to family court.
“In other words, the legislation itself provides that a woman can file a lawsuit for divorce, legal separation and annulment and custody in the Domestic Violence Court, along with protective measures. This is because the legislation provides for the full protection of women so that she does not become even more vulnerable,” he adds.
2 of 3 Ana Hickmann and Alexandre Correa have been married for 25 years and live in a condominium in Itu (SP) — Photo: Reproduction/Social Networks Ana Hickmann and Alexandre Correa have been married for 25 years and live in a condominium in Itu (SP) Photo: Reproduction/Social Media
Prosecutor Fabiana Dal’Mas Paes, who works at the Center to Combat Domestic Violence in the Capital of São Paulo (GEVID) and is coordinator of the Gender and Diversity Subcommittee of the Public Ministry of the State of São Paulo, explains that the domestic violence court is in the The criminal area is responsible for more urgent matters and there is the possibility of transferring responsibility for more complex cases to the family court in the civil area.
“Because of the complexity, the family court will be better able to analyze property matters that cannot be analyzed by the criminal court, custody discussions and visitations that require expertise and careful analysis. Therefore, the family court is more suitable for these complex cases. However, this does not mean that access to justice is denied. On the contrary, what is happening is that access to justice is being granted in a more specific way. And nothing prevents you from filing a criminal complaint. According to the police report, the defendant is responsible for a crime if there is evidence to do so.”
According to the prosecutor, the judiciary has already made a lot of progress from a gender perspective in its trial record. “Therefore, all cases, whether in the criminal court or the family court, are judged taking into account all the issues that affect our women in our country,” he added.
Prosecutor Celeste Leite dos Santos, President of the Pró Vitima Institute, also reiterates that the Maria da Penha Law provides that the jurisdiction of the Domestic Violence Court is hybrid in order to prevent revictimization and that, although there is no According to you, it is common practice for judges in family matters to refer the cases in question to the civil area.
“This has an important revictimization effect. Imagine the victim being forced to go to the police station to tell the story. She will tell the same facts for the second time in domestic violence court. And later in the family court, repeating the same facts for the third time. This can lead to a much deeper trauma than the crime that was ultimately committed if the facts are proven in court.”
For her, the domestic violence court could have continued the process. The prosecutor also emphasized that the new Civil Code allows the judge to decide on the divorce without discussing assets, and that more complex issues involving assets or depending on evidence can be discussed later.
“It is up to the Court to provide the means and equipment necessary to comply with the law. It is the victim’s choice and right to choose a sentence that is inherently more protective. We cannot avoid applying the law because of the complexity of the facts,” he said.
Report domestic violence
According to BO, the model reported that Alexandre Correa pushed her against the wall and threatened to headbutt her. She stated that she managed to push her husband away and take the cell phone, but at that moment Alexandre closed the sliding kitchen door and squeezed her left arm.
The presenter’s advisor said that Ana Hickmann has already given all the clarifications and trusts that the case will be handled by the courts.
3 of 3 Alexandre Correa and Ana Hickmann — Photo: Reproduction/Social Media Alexandre Correa and Ana Hickmann — Photo: Reproduction/Social Media
Further changes to the Maria da Penha law
In addition to the change regarding the way in which the application for divorce, separation or dissolution of a committed partnership can be made, the change made in 2019 provides for further measures in the Maria da Penha Law. Are they:
- Legal assistance so that the victim can officially distance themselves from the perpetrator through their own legal steps;
- The police chief must explain all of these rights to the victim of domestic violence and provide instructions on how to access them, which appears to have happened in the case of presenter Ana Hickmann;
- Upon request, the child has the right to protective measures and removal from abusive parents;
- If the perpetrator is not removed from the victim, it is stipulated that a person can arrange visits between the perpetrator and the child to prevent contact between the victim and the perpetrator.