(In)justiça de gênero? : o patriarcalismo jurídico na justiça subnacional brasileira

Abstract

The justice system, as part of the social structure, is influenced by patriarchy, reproducing sexist stereotypes and discourses in its actions, rather than aligning with legislative advances on the issue. In an attempt to ensure equality by promoting an ostensibly neutral discourse, the Judiciary ends up not promoting justice but oppression, reinforcing male domination over women. In light of this, the aim of this dissertation is to analyze how legal patriarchy manifests in judicial decisions on femicide issued by Brazilian subnational courts, limiting women's access to justice. Using an interdisciplinary approach that integrates judicial politics, gender studies, and critical criminology, a comparative case study was conducted between the courts of Minas Gerais, Mato Grosso, and Rondônia. The selection of these courts was intentional, based on the classification of their size by the National Justice Council, the violence indexes in the states, and the institutional differences among them. The sample consists of 188 judicial decisions – RESEs and Criminal Appeals – issued by second-instance courts between 2020 and 2023. For the analysis of these rulings, a structured analytical questionnaire with 33 questions was developed, organized into three operational axes: (i) legal reasoning, (ii) use of gender stereotypes, and (iii) impact on access to justice. The results show that the analyzed decisions are systematically permeated by patriarchal elements, regardless of the institutional differences between the courts. Although some rulings reflect on gender-based violence, these cases are insufficient to suggest that the courts have a structural concern with the issue. What predominates in the decisions are misogynistic justifications, arguments aimed at discrediting the victim and minimizing the violence, as well as practices that render femicide invisible. These practices include the formulation of generic questions in jury trials, the underuse of the term “femicide,” and the inappropriate reduction of the corresponding qualifier. Thus, legal patriarchy not only influences legal arguments but also operates as a structural barrier to women's access to justice. It was found that, despite legislative advances aimed at promoting gender equality and combating violence against women in Brazil, the justice system remains permeated by sexist arguments. The patriarchy present in the Judiciary is not limited to isolated cases but constitutes an institutionalized pattern that reinforces gender stereotypes and perpetuates institutional violence against women who turn to the courts after already being victims of violence.