As Vítimas no Banco dos Réus no Tribunal do Júri: A Persistente Presença da Legítima Defesa da Honra Masculina nos Crimes de Feminicídio no Brasil

Abstract

“Does the jury acquit the accused?” This is the mandatory question included in the Criminal Procedure Code by Law No. 11,689/2008, object of this research. How has this question become the means of legalizing the use of the “legitimate defense of honor” thesis in cases of feminicide? From a technical-legal point of view, the answer is relatively simple, since it is supported by the thesis of non-appealability by the Public Ministry in the case of “acquittal for clemency”, even though this decision is clearly contrary to the evidence in the case file. However, from a critical perspective, the absolution of the feminicide reveals the social tolerance of the “legitimate defense of honor” thesis supported by the justice system. Thus, this research aims to demonstrate how the use of a technical-legal instrument is capable of breaking the constitutional order founded on equality between women and men. Tothisend,theempiricalmethodwillbeapplied, in three stages, starting with the analysis of the legislative process of inserting the mandatory question for the 2008 reform, as well as its effects on the appeal system, passing through the analysis of Habeas Corpus no 178.777 by the Federal Supreme Court, articulating it with the trinomial patriarchy, gender and violence, ending with the main arguments of the Supreme Court in the judgment of the Precautionary Measure in the ADPF No. 779. In conclusion, the legal gap opened by the mandatory question reveals the structural gender violence present in Brazilian society historically marked by patriarchy.