Protective measures are legal mechanisms that aim to protect an individual at risk. The most common case of protective measure is the Maria da Penha Law (Law 11.340/2006), which aims to protect women victims of family and domestic violence from being attacked again.
The protective measure, in this case, is requested by the victim and issued by the justice on an emergency basis. It requires certain behaviors on the part of the aggressor, the main one being the prohibition of the accused to approach the victim.
The Maria da Penha Law and the protective measures provided for in that legislation, oblige the State to protect the women victims of violence and aim to reduce gender violence, considered a global pandemic by UN.
Another legislation that provides for the use of protective measures is the Statute of Children and Adolescents (ECA), these mechanisms can be requested in cases where the rights of the minor are being threatened or violated.
How do protective measures work?
Maria da Penha Law
The protective measures of the Maria da Penha Law can be requested by the victim at the police stations together with the denunciation of the aggression. The police station forwards the request to the responsible judge or judge, who has up to 48 hours after the request to determine the application of the measure.
According to the Maria da Penha Law, family or domestic violence against women is:
any action or omission based on gender that causes death, injury, physical, sexual or psychological suffering and moral or property damage.
There are two types of protective measures provided for in the law: those that oblige the aggressor to certain conducts and those aimed at protecting women.
The measures that oblige the aggressor, in general, are related to the non-approach of the victim to the protection of their physical and psychological integrity and the duration of the measures will be established by the justice. Some examples of these measures:
- Prohibition of approaching the victim, their children, relatives and even witnesses.
- Prohibition of contact with women, including via telephone or social networks.
- Restriction or even suspension of visitation rights to children.
- Pay child support for the woman - in case she is financially dependent on the aggressor.
- Restriction on carrying weapons.
Other measures aimed at offering security to women victims of domestic and family violence are:
- Referral of women and their children to places of shelter and protection;
- Presence of a police officer so that the woman can go to the residence, if the aggressor remains in the place;
- Restitution of property taken by the aggressor.
Depending on the seriousness of the aggression, the courts may determine the preventive detention of the accused to protect the integrity of the victims.
Child and Adolescent Statute
Law 8,069, created in 1990 the Statute of Children and Adolescents. This legislation provides protective measures for minors whenever they are under threat or effective violation of their fundamental rights.
The protection measures aim to remove the child from the risk situation, strengthening family and community ties, and can be applied in three cases:
- State Omission: when the State fails to comply with some legal obligation. For example, when the child does not attend school, as there is none near their home.
- Parental omission or abuse: when, for example, parents or guardians prevent a child of school age from going to school or when they force the child to work.
- Due to their own conduct: when a child or teenager commits an Infraction, which is an act of disrespect for the law.
Article 101 of the ECA provides as measures to protect children and adolescents:
I - forwarding to the parents or guardian, through a term of responsibility;
II - temporary guidance, support and follow-up;
III - compulsory enrollment and attendance at an official elementary school;
IV - inclusion in a community or official program to help families, children and adolescents;
V - request for medical, psychological or psychiatric treatment, in an inpatient or outpatient setting;
VI - inclusion in an official or community program of assistance, guidance and treatment for alcoholics and drug addicts;
VII - institutional care;
VIII - inclusion in a family shelter program;
IX - placement in a surrogate family.
The Maria da Penha Law
Law 11,340, enacted in 2006, was inspired by the case of pharmacist Maria da Penha, who suffered recurrent violence and attempted murder by her husband. He tried to kill her by electrocuting and drowning and paralyzed her after a shotgun blast.
Maria da Penha's aggressor was punished only after 19 years of trial and spent only two years in a closed regime. The Maria da Penha Law allows for arrest in flagrante delicto or preventive and increases the penalties of the aggressors, preventing the provision of alternative penalties, as previously occurred.
In 2018, the Maria da Penha Law was amended by Law 13641. As of the enactment of this legislation, non-compliance with protective measures by the accused is considered a crime, with a penalty of three months to two years of imprisonment.
Despite being considered one of the most advanced laws in the world on the subject, the numbers on violence against women remain alarming in the country.
Violence against women in Brazil
Brazil is one of the most violent countries for women in the world, some data about the Brazilian reality were compiled by the Maria da Penha Institute, in the Clocks of Violence project.
- Every 2 seconds a woman suffers verbal or physical violence.
- Every 6.3 seconds a woman is threatened with violence.
- Every 7.2 seconds a woman is a victim of physical violence.
- Every 2 minutes a woman is a victim of a firearm.
Domestic violence is usually practiced by the partner and, most of the times, it involves relationships of emotional and financial dependence. In this scenario, many victims end up not reporting the aggressors and remain in a cycle of violence that repeats and worsens over time.
In this sense, protective measures are mechanisms that aim to provide safe conditions for women seek help from the authorities and can report their aggressors, without further compromising their safety.
See also the meaning of femicide, Domestic violence and Maria da Penha Law.