Correcting Prejudice in Legal Discourse: Brazil

Written by: Brittany Friedman[1]

Too often, scholarship analyzing child prostitution in Brazil is limited to identifying at-risk groups and evaluating the relationship between sexual exploitation and poverty.  This intellectual pigeonhole has consistently prevented lawmakers and activists from fully addressing the damaging effects of child prostitution on Brazil’s socioeconomic equity.  Indeed, these types of analyses are necessary for the development and implementation of public policy; however, they overlook how subjective interpretations of the law increase social inequality by imbedding cultural stereotypes into legal discourse.

Although the Tribunal de Justiça da Bahia projects itself as a moral regulator and protector of the social environment, a close reading of child prostitution cases reveals that their perception of morality is selective.[2]  Female child prostitutes are often portrayed as poor, primitive seductresses through the use of coded adjectives that allude to class and race.  The court suggests that girl prostitutes are inherently immoral, characterizing them against normative understandings of proper female sexuality and honor.  In opposition, male prostitutes are victimized as exploited young boys who are easily coerced by promises of food and money.  The court implies that stealing the masculinity of young boys is one of the worst threats to public order and the social environment, an implication that directly reproduces machismo ideology.  Because legal moral codes and social order are culturally defined, my argument ultimately shows how Brazilian cultural norms of sex, gender, and class directly influence the court’s practical engagement with child prostitution cases in its quest to instill morality and police the social environment.

Policymakers fail to recognize the negative effects of legal jargon because they only put emphasis on case outcomes and official verdicts, which ignores the institutionalized stereotypes and prejudicial discourses that underscore legal judgments.  Thus, implementing stricter laws on child prostitution will not solve this issue.  Brazil has strengthened its legal base by instituting important laws that work to protect children from violence and sexual exploitation.  For example, on July 13, 1990 Brazil approved Law 8.069,[3] guaranteeing children and adolescents protection from violence and exploitation.  Also, on March 8, 2004 Brazil issued Decree No. 5.007, adopting the UN Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography.  These laws only focus on the prosecution of crimes against children, and are inadequate to protect marginalized groups from being further victimized through biased descriptions in official case records. For example, even if a judge rules in favor of a rape victim, if he criticizes her mode of dress at the time of her attack, he in many ways leaves room for society to place varying degrees of fault onto the victim.  Descriptive rhetoric is not always bold like the legal decisions it accompanies.  Instead, it creeps into our everyday discourse because of its strong linkage to normative behavior, even if it obliges cultural norms that reinforce prejudice.

To combat legal jargon that reinforces stereotypes, the Brazilian government should develop education-based strategies specifically designed to target prejudice in the legal system.  Education is a proven tool that positively transforms discriminatory attitudes by teaching students and teachers to respect social differences.[4]  Under the Lula administration, Law 10.639/2003 reformed educational curriculums to include instruction on African contributions to Brazilian culture and society in an effort to combat social and economic inequality.  With its implementation, the plan seeks to address diversity education and institutionalized discrimination, placing major focus on teacher training and non-discriminatory instruction materials.  The Ministry of Education justifies the policy by stating that education is a human right and it is the government’s job to guarantee an environment promoting respect for diversity, assuring that all groups can access opportunities for social and economic advancement.[5]  The policies derived from Law 10.639/2003 should be adapted to reform law programs throughout tertiary education, teaching law students about cultural stereotypes that are reproduced in legal discourse.  Mandating diversity courses for law students would serve as a re-socialization process, where future lawyers and judges learn about normalized prejudices that frequently invade the courtroom not only in cases of child prostitution, but in any legal matter that contributes to institutionalized bias.  Furthermore, most law programs are highly concentrated with white or upper class Brazilians, preventing students from interacting with others outside of their social class and belief system.  It is not enough to adopt affirmative action quotas that increase the number of underprivileged pupils; law programs must also embed diversity into their mainstream curriculum and stress the importance of its application in all legal settings.  Law education should be a social engineering tool, making future leaders aware of their ability to reinforce prejudice just through their choice in words.

The Brazilian government has legal jurisdiction to impose necessary curriculum reforms on public universities, while also providing incentive for private universities to follow suit.  Articles three and five of the federal constitution declare that all citizens are equal before the law, granting the state the authority to promote the well being of all citizens without any prejudices or any other forms of discrimination.[6]  Though originally intended for primary and secondary education, five components of Law 10.639/2003 can be adapted as the basis for reforming tertiary legal education. These components include:  standardized policies for training education administrators and professionals; democratic management and participant mechanisms; a policy on educational materials; reforming institutional conditions; and monitoring and evaluation.[7]  These components are effective because of their multi-faceted approached to correcting discrimination and bias.  Standardized policies for training education administrators and professionals helps ensure that all universities are teaching their employees the same material and following curriculums proven to be effective in reducing prejudices perpetrated by university leaders.

Also, it is impossible to adequately monitor and evaluate the policies if they are not standardized across schools.  In 2006, Brazil developed a teacher training course called “Diversity in School” that successfully instructed 1,200 teachers on creating positive learning environments by improving their understandings of gender, sexual, ethnic, and racial diversity.  The course provided school leaders with activities that encouraged acceptance in the classroom.[8]  Training courses like these put strong emphasis on primary and secondary teachers, failing to educate professors and university administrators.  By adapting a policy like “Diversity in School,” law programs will transform the ways in which law professors construct educational environments conducive to teaching about stereotyping in the legal system.

Involving professors in the policy development process will incorporate diverse opinions while also promoting democratic and participant-based mechanisms.  Implementing diversity education will be more successful if the professors themselves are allowed to contribute to the policymaking process.  Furthermore, inclusion helps reform institutional conditions traditionally marred by naturalized discrimination.  Affirmative action policies also help reform the institution’s culture by diversifying the academic body.  A study by UCLA’s Civil Rights Project suggests that a diverse faculty is more likely to foster teacher collaboration, with less experienced teachers turning to their fellow colleagues for help in teaching diversity education.  The goal of the UCLA study was to assess teacher preparation for teaching diversity education; this type of study should be conducted in Brazil so that teacher training policies can instruct law professors in teaching techniques according to their own unique needs.[9]

The most important component of reforming law education is developing a standardized diversity curriculum that not only places emphasis on the power of legal discourse, but also gives students general knowledge about the types of prejudices that affect how marginalized groups are treated by the legal system.  Students must learn that discrimination in the legal system, even if expressed in victim descriptions and legal opinions, rather than in judicial outcomes or verdicts, still perpetuates social inequality because victims are denigrated on the basis of social indicators, like gender and class.  According to law professors Karst and Rosen, “if we take the law in its broadest sense as the epitome of all norms and sanctions…we must say that the law is both a necessary and a sufficient condition of social inequality.  There is inequality because there is law; if there is law, there must also be inequality.”[10]  In its attempts to regulate equity, the law’s interpretation increases social inequality by imbedding cultural stereotypes into legal discourse.  As shown in my thesis, the criminalization of child prostitution victims exists not only in spite of the law, but also because of the law.  Law education must teach students the importance of jurisgenesis,[11] training them to carefully choose their language so that instead of reproducing prejudice, they transform and deconstruct traditional ways of thinking.  When students study case studies, in addition to studying the judicial process and verdicts, professors should ask students to identify instances where they notice prejudicial wording that undermines the credibility of victims or defendants.  Secondly, the students should try to trace these prejudices back to normative understandings of gender, race, and class that are present within the larger societal culture.  In doing this, students learn the roots of discrimination and begin to understand why biases are reproduced across all institutions.  The ultimate goal is to incorporate anti-discrimination theory into Brazilian legal pedagogy.

As shown, reforming legal language moves beyond cases of child prostitution because the tactics described in this piece will transform law education as a whole, promoting informed professors and administrators, democratizing the institutional body, while most importantly, re-socializing future lawyers so that they will incorporate respect for diversity in every aspect of legal practice.  Transforming legal jargon is the first step to creating a more socially aware judicial system that respects the rights of all citizens in every capacity of the law.  This transformative process is crucial to Brazil’s future success as an equitable nation with respect for human rights.  Without these reforms, we will continue to see discriminatory rulings that solidify biased language into legal discourse.

One recent example is the March 2012 case where the Superior Tribunal de Justiça ruled against three 12 year-old prostitutes by stating that “whether [or not] they [child prostitutes] are mature enough to consent [sexually] has to be decided with reference to their wide sexual experience, not just their age.”[12]  By ignoring the coercive violence inflicted upon child prostitutes, the descriptive language used by courts further engrains into legal discourse prejudices that are often cultural and rooted within institutionalized racism.  If no changes to law education are made, outcomes like the March 2012 ruling will continue because prejudices underscore legal discourse, ultimately prompting blatant discriminatory rulings such as that one.[13]  In order to bring about significant advancements in socioeconomic equality, policymakers and human rights activists must initiate further discussion on the issue of prejudices in the legal system and the reproduction of discriminatory language in court proceedings.

[1] PhD student in Sociology at Northwestern University and a Graduate Fellow at the Center for Legal Studies. Her research interests include crime, delinquency, and the law. She just finished a paper entitled “Targeted Incarceration:  a Look at Pervasive Inequality and Crime Policy,” which is scheduled for publication in February.  Additionally, she has a working paper exploring the theoretical dichotomy linking rebels and criminals, citing the Brazilian gang Amigos dos Amigos as a case study.  Before Northwestern, she received her MA at Columbia University in Latin American Studies and her BA in History from Vanderbilt University.

[2] These are the arguments I advance in my Master’s thesis entitled, “Selective Morality in Legal Discourse:  Child Prostitution and the Reinforcement of Cultural Bias in Bahia, Brazil.”

[3] “A Violência Contra as Crianças e os Adolescentes,” Âmbito-Jurídico, http://www.âmbito-jurí  “O novo paradigma de proteção integral, trazido pela Constituição da República de 1988 e, particularmente, pelo Estatuto da Criança e do Adolescente, se aproxima mais da realidade do Estado Democrático de Direito, ao elevar crianças e adolescentes à condição de sujeitos de direitos, adotar normas de caráter fundamental e viabilizar a implementação de Juizados da Infância e da Juventude…Baseada na doutrina da proteção integral foi aprovada a Lei 8.069 de 13 de julho de 1990, que trata especificamente dos direitos e garantias das crianças e adolescentes.”

[4] David E. Hogan and Michael Mallott, “Changing Racial Prejudice Through Diversity Education,” Journal of College Student Development 46 (2005):  115-125.

[5] Presidência da República:  Casa Civil, Subchefia para Assuntos Jurídicos, “LEI No 10.639, DE 9 DE JANEIRO DE 2003, 12-13.

[6] “Constituição da República Federativa do Brasil de 1988,” Presidência da República

[7] Proposta de Plano Nacional de Implementação das Diretrizes Curriculares Nacionais da Educação das Relações Étnico-raciais e para o Ensino de História e Cultura Afro-Brasileira e Africana—Lei 10.639/2003.

[8] Latin American Center on Sexuality and Human Rights, “Diversity in School,” Center for Study and Research in Collective Health, Rio de Janeiro, 2012.

[9] Erica Frankenberg and Genevieve Siegel-Hawley, “Are Teachers Prepared for Racially Changing Schools:  Teachers Describe Their Preparation, Resources, and Practices for Racially Diverse Schools,” UCLA Civil Rights Project, January 2008.

[10] Kenneth L. Karst and Keith S. Rosen, Law and Development in Latin America:  A Case Book (Los Angeles:  University of California Press, 1975), 698.

[11] V. Vijay Kumar Bhatia etal., Legal Discourse Across Cultures and Systems (Hong Kong:  Hong Kong University Press, 2008), 221.  “The creation of legal meaning,,.‘jurisgenesis,’ takes place always through an essentially cultural medium [where] culture ought to be regarded as the signifying system through which necessarily a social order is communicated, reproduced, experienced, and explored.[11]  [In this context, legal discourse is analyzed according to] the social context determining the conditions of production within which legal texts are framed and the actual situations in which such texts are to be employed.”

[12] “Brazilian Court Makes Child Prostitutes Criminals,” Being Latino, April 04, 2012.

[13] Pierpaolo Cruz Bottini, “O STJ e a Presunção de Violência no Estupro,” Consultor Jurídico, April 17, 2012, 2.