Authors inform there is no conflict of interest.
Maria Clara Cardoso Seba (1)
Amanda Delfino Braccini (1)
Pedro José Correia Ferraz (1)
Fabiana Iglesias de Carvalho (2)
Carmen Sílvia Molleis Galego Miziara (2)
Ivan Dieb Miziara (3)
(1) Faculdade de Medicina do Centro Universitário ABC, Santo André – SP, Brasil (main author).
(2) Faculdade de Medicina do Centro Universitário ABC, Santo André – SP, Brasil (secondary author, coordination).
(3) Faculdade de Medicina do Centro Universitário ABC, Santo André, SP, Brasil (advisor).
Violence against women is a crime of human rights violation and is often caused by the intimate partner during or after the end of the affective relationship. Health consequences for the victims must be estimated according to articles 129 and 140 of the Penal Code. The random act to physical safety with the desire to cause suffering, humiliation or pain to the woman is not infrequent and is not always considered. This study aimed to discuss some medical-legal aspects related to intimate partner violence regarding bodily injury and actual injury, and to report a case of violence against women in which the perpetrator caused physical damage and denigrated the victim’s image by cutting her hair to humiliate her.
Keywords: Violence Against Women; Intimate Partner Violence; Forensic Medicine; Liability, Legal.
Violence against women represents a serious violation of fundamental human rights, and the most common form is caused by an intimate partner, reaching the level of a worldwide public health problem (1,2). The negative physical and/or psycho-emotional impacts are immediate and delayed. The World Health Organization (WHO) defines intimate partner violence (IPV) as “any behavior within an intimate relationship that causes physical, psychological, or sexual harm” (3). Thus, the victim can be of any gender, but for this study only female victims will be addressed.
Estimates show that one third of women over the age of 15 worldwide are subjected to physical or sexual violence by their intimate partners (4). In Brazil, between 2008 and 2018, there was a 4.2% growth in murders of women; in 2018, a woman over the age of 18 was murdered every two hours in the country, 64.4% black, 38.9% of which were inside the victim’s residence and 53.7% by firearm (5).
In August 2006, in Brazil, Law nº. 11.340 (6), popularly known as Maria da Penha Law, went into effect. Its purpose was to “curb domestic and family violence” against women, referencing what is determined in article eight of the Federal Constitution (7), and changing the Penal Code (8). However, the number of women assaulted and murdered continues to worsen, with 1,326 deaths attributed to feminicide in 2019, representing a 7.1% increase compared to the previous year. Of that total, 66.6% were black and young (between the ages of 20 and 39) and 89.9% were killed by their partner or former partner (9). Although still partial, data show that the disease pandemic caused by the new coronavirus SARS-CoV-2 (Covid -19) has contributed to the rise in the number of domestic assaults. In the first semester of 2020, there was an increase of 3.8% in calls to the 190 telephone (Military Police) from women requesting help as a result of domestic violence, despite a reduction of 9.6% in police station registrations, and 649 feminicides, 2% more than in the same period of 2019 (9).
Law nº. 13.104 of March 9, 2015, amends Article 121 of the Penal Code, providing for feminicide as a “qualifying circumstance of the crime of homicide,” such as domestic and family violence and contempt or discrimination to the condition of women, and including “feminicide in the list of heinous crimes” (10).
Many cases of feminicide are associated with the attempt or termination of the affective relationship between the victim and the aggressor, generated, almost always, by the feeling of possession of the partner over the woman, who feels entitled to attack fer partner physically or psychologically (11).
Understanding the reasons that lead to domestic violence practiced by the intimate partner is extremely difficult, because it involves multiple social contexts (12).
The perpetrator uses five methods to achieve, maintain, or regain control over their intimate partner which are physical, sexual, psychological, and economic violence and stalking. The behaviors of the violator focus on control, isolation, and domination of the victim, as well as have the intention to retaliate, humiliate, and punish women who resist their domination (13).
The analysis of the damages resulting from violent acts imposed by the partner or former partner are not always easily qualified or quantified when they are of a random character to physical safety, but they cause suffering and humiliation (14).
This study had as main objectives to describe the main aspects related to violence against women, without considering the gender issue, imposed by the intimate partner and discuss from the legal point of view the possible implications imposed to the aggressor in cases where the damage caused offended the dignity or decorum of the woman, as in the case to be exposed.
2. MATERIAL AND METHOD
Study developed at the University Center of the ABC School of Medicine (FMABC) by means of case report, which gave rise to a narrative review of literature on intimate partner violence, not only on the type of physical violence itself, but on the psycho-emotional consequences arising from actual injury. Therefore, no explicit and systematic search criteria were applied. The selection of scientific articles and texts of laws and book chapters was determined by the authors according to relevance. Likewise, no period was established for the search of materials. The databases searched were those of free access (PubMed; Capes Periodicals; and Google Scholar) with the application of the descriptors in health sciences “violence against women”; “intimate partner violence”; and “domestic violence” grouped by the Boolean operators “and” or “or”. Texts extracted from websites and book chapters were included in the search. The inclusion criteria, besides the relevance of the material, were articles written in Portuguese or English, those obtained in full, and those on the subject.
3. CASE REPORT
A woman reports having been assaulted by her ex-partner with a piece of wood after refusing to go out with him. She also states that the aggressor cut her hair with the intention of humiliating her and leaving her with a vexatious appearance.
On physical examination, she presented open contused lesions on her scalp requiring suture, without the presence of a bone fracture. In addition, there were areas of the scalp with irregularly and randomly shorn hair. When analyzing the upper limb, it is noticed the presence of bruises of purplish and greenish-yellow coloration, suggesting the violence reported by the patient.
Figs. 1 to 5: the open contused lesions on the scalp and the hematomas caused by the physical force practiced by the aggressor.
In 2016, 4,645 women were murdered in Brazil, a rate of 4.5 homicides for every 100,000 Brazilians, with growth of 6.4% over the course of the year. In the decade corresponding to 2006 and 2016, the homicide rate of black women was 71% higher compared to non-black women (15).
In 2018, 4,591 women were murdered, 4.3 homicides per 100,000 female population, of which 30.4% were classified as feminicide, representing a 6.6% increase from the previous year. A quarter of the feminicides were by gunshot wounding inside the victim’s residence (16).
In 2019, women were three times more victims of violence than men, 43.1% occurred inside the home and in 25.9 % the aggressor was the partner or former partner, only 21.1% of those assaulted seek the police and 20.8% do not register a complaint (17).
The feminicide is the maximum expression of violence against women, but many women before being murdered were repeatedly victims of physical and/or psycho- emotional violence, in which there was an oppressive relationship, conflict of interests between the oppressor and the oppressed, and a social relationship of hierarchy between the sexes, of domination and subalternity (3).
WHO data showed that IPV occurs in an intimate relationship in which one of the partners, male or female, causes physical, sexual and/or psychological harm, alone or in combination. The Centers for Disease Control and Prevention (CDC) in the United States of America (USA) defines IPV as a form of physical, psychological, sexual assault or stalking by the current or former partner (spouse or boyfriend) (18).
From the analysis of a study by Garcia and Silva (19), it was found that women bear much of the burden of intimate partner violence, with 36.9% of women living in rural areas and 28.9% in urban areas being victims of physical and/or sexual violence by an intimate partner at least once in their lifetime. Among the consultations for intimate partner violence in urgency and emergency services of the Unified Health System (SUS), there was a predominance of female victims, in the age group of young adults, black skin color, and with worse socioeconomic conditions, according to the lower education level and the absence of paid work. Males predominated among the aggressors (19).
In addition to physical injuries, this type of violence can cause sequels capable of affecting socioeconomic performance that, in turn, trigger the adoption of unsafe sexual practices and increase health risk behaviors, such as drug and alcohol abuse. Moreover, they can lead to the onset of mental disorders, which demonstrates the severity of this type of violence and the need to adopt primary prevention strategies for intimate partner violence at all stages of life (19).
In Brazil, gender inequality, marked by a historical burden of patriarchy, grants greater power to men and, consequently, makes women submissive to him. With this, gender violence, especially against women, is accepted. According to Schraiber et al. (20), gender violence expresses “a masculine act to acculturate women in reference to the oldest and greatest power of the masculine, which is patriarchy. This is the culture that conditions the male sex to the position of dominator, having violence as an attribute of its own nature and leading men to be the main authors of this violence.
According to Article 5 of Law nº. 11.340, 2006 (Maria da Penha Law), “domestic and family violence against women is defined as any action or omission based on gender that causes death, injury, physical, sexual or psychological suffering, and moral or property damage” (6). This law represents an important achievement and is a fundamental resource for combating domestic and family violence against women (8). However, a study that compared the annual mortality rates of women due to aggression in Brazil in the periods of five years before and five years after the effectiveness of the Maria da Penha Law showed that there was no significant reduction in this rate, a fact that is worrisome for society (21).
In the present case, the discussion will be based not only on physical violence, but on an arbitrary act with the connotation of causing damage to the woman’s image, which was the unauthorized haircut. This action has the potential to cause an unfavorable change in the victim’s external appearance, constituting the crime of bodily injury, included in the crimes against the person because it is an act that threatens physical integrity. In this case, it is also worth mentioning that the scars resulting from blunt scalp injuries will be permanent, an undeniable fact. Regarding unauthorized haircuts with the intention of offending, even temporarily, the woman’s physical integrity, Brazilian courts have ruled in both directions. The unreasonable haircut could, in theory, constitute the crime of minor bodily injury or the crime of insult, whose penalties are equivalent, going up to a maximum of one year of confinement and a fine (in the second case).
Initially, let us analyze if there was a crime. According to the medico-legal doctrine, a crime is defined as “a human act, imputable, culpable, contrary to the law, and punishable by law” (14). Therefore, we would need more elements regarding the author’s conditions for a better analysis and conclusion.
The next approach will be considering the Penal Code (1940). According to article 129 of the Penal Code (1940), offending the bodily integrity or health of another person is light bodily harm. This fact is undeniable, but we should address what is stated in the first paragraph of the referred article “If it results in: inability to perform one’s usual activities for more than thirty days”, it will be considered serious bodily injury, with a prison sentence of one to five years (8). This discussion must be put on the agenda, for we should know what the victim’s usual activity is, since, due to the alteration of her physical image, she could be prevented from acting until her hair grows.
Still within the aspect of light bodily injury, there is the understanding that injury to mental health should be considered a type of bodily injury, therefore in the case presented more information about the victim’s mental conditions and what the act itself represented are of utmost importance.
Continuing the discussion regarding bodily injury in the Penal Code, we did not find the figure of aesthetic damage, the closest thing to this aspect is the permanent deformity resulting from scars on the scalp, which will cause hair growth failures in the affected regions, but this is not the subject of this study.
Among the crimes against honor, it is possible to address in the case at hand the crime of insult, article 140 of the Penal Code (1940): “To insult someone, by offending their dignity or decorum”, whose penalty is six months or a fine. The second paragraph refers to the insult that “consists of violence or ways of action that, by their nature or the means employed, are considered demeaning”, with a penalty of three months to one year, “in addition to the penalty corresponding to the violence”, corresponding to actual insult (8). Returning to the case discussed in the present article, the means employed by the aggressor was demeaning and, by cutting the female victim’s hair, he considered that, with such conduct, he would belittle the victim (8), thus justifying the crime of actual insult.
In the context in which the victim was humiliated, suffering offenses to her dignity, as is the case in which the aggressor, for revenge, voluntarily cuts his former companion’s hair, it is possible to conclude that the crime of real insult. This condition requires proof of the crime’s materiality, according to several judgments handed down by the Criminal Courts, as an example, Court decision at the second instance nº. 70083643387 (Nº. CNJ: 0002697-86.2020.8.21.7000) of the Court of Justice of Rio Grande do Sul – TJ-RS (22).
In Brazil, the professional in case of suspicion or confirmation of violence is obliged to proceed with the compulsory notification to the Notifiable Diseases Information System (SINAN) in seven days, except if the violence is sexual, the notification becomes immediate, within 24 hours of knowledge of the fact (23). As for violence against women, Law nº. 13.931/2019 determines that, in case of suspicion or confirmation, the police authority must be communicated within 24 hours, in addition to ratifying, in its first article, the obligation of compulsory notification (24).
Therefore, violence against women is a public health problem of great magnitude, with important consequences on the health of the victims, their families and the community, although it is preventable (4). In the medical expert evaluation or medical assistance, it is of fundamental importance to analyze the clinical manifestations of the victim, not only from the point of view of physical abnormalities, and to make detailed descriptions of the psycho-emotional conditions of the victim and the circumstantial data of the event. Likewise, the medical expert must focus attention on the global aspects of the victim, not only the physical findings, but also the psycho-emotional.
Violence against women is a serious public health problem, being responsible for high rates of morbidity and mortality all over the planet. Faced with issues similar to the above, it is important to analyze the case as a whole and not in segments. The absence of bodily injury does not imply the absence of criminal responsibility of the aggressor or the minimization of the penalty. The crime of domestic violence can be listed as a misdemeanor of misdemeanor assault and misdemeanor of actual insult, as long as it is proven.
- Organização Mundial da Saúde (OMS). Prevenção da violência sexual e da violência pelo parceiro íntimo contra a mulher: ação e produção de evidência. Washington: OMS; 2010. [Citado 01 Fev 2019]. Disponível em: http://apps.who.int/iris/bitstream/10665/44350/3/9789275716359_por.pdf.
- Lindner SR, Coelho EB, Bolsoni CC, Rojas PF, Boing AF. Prevalência de violência física por parceiro íntimo em homens e mulheres de Florianópolis, Santa Catarina, Brasil: estudo de base populacional. Cad Saude Publica. 2015;31(4):815-826. https://doi.org/10.1590/0102-311X00159913.
- World Health Organization/Pan America Health Organization. Understanding and addressing violence against women. Intimate partner violence. 2012. [citado 20 jan 2021]. Disponível em: https://apps.who.int/iris/bitstream/handle/10665/77432/WHO_RHR_12.36_eng.pdf;sequence=1
- World Health Organization. Global and regional estimates of violence against women: prevalence and health effects of intimate partner violence and non-partner sexual violence. p.57. [citado 20 jan 2021]; Disponível em: https://apps.who.int/iris/bitstream/handle/10665/85239/9789241564625_eng.pdf
- Instituto de Pesquisa Econômica Aplicada – IPEA. Atlas da Violência 2020. [Acesso em 2021 mar. 6]. Disponível em: https://www.ipea.gov.br/atlasviolencia/arquivos/artigos/5929-atlasviolencia2020relatoriofinalcorrigido.pdf
- Presidência da República. Secretaria Geral. Subchefia para Assuntos Jurídicos. LEI nº 11.340, de 7 de agosto de 2006. Cria mecanismos para coibir a violência doméstica e familiar contra a mulher, nos termos do § 8º do art. 226 da Constituição Federal, da Convenção sobre a Eliminação de Todas as Formas de Discriminação contra as Mulheres e da Convenção Interamericana para Prevenir, Punir e Erradicar a Violência contra a Mulher; dispõe sobre a criação dos Juizados de Violência Doméstica e Familiar contra a Mulher; altera o Código de Processo Penal, o Código Penal e a Lei de Execução Penal; e dá outras providências. [citado 19 jan 2021]. Disponível em: http://www.planalto.gov.br/ccivil_03/_Ato2004-2006/2006/Lei/L11340.htm
- Presidência da República. Casa Civil. Subchefia para Assuntos Jurídicos. Constituição da República Federativa do Brasil de 1988. [Acesso em 2021 mar 6]. Disponível em http://www.planalto.gov.br/ccivil_03/Constituicao/Constituicao.htm#art226%C2%A78
- Presidência da República. Secretaria Geral. Subchefia para Assuntos Jurídicos. Decreto-Lei n° 2.848, de 7 de dezembro de 1940. Código Penal. [citado 19 jan 2021]; Disponível em: http://www.planalto.gov.br/ccivil_03/decreto-lei/del2848compilado.htm
- Fórum Brasileiro de Segurança Pública. Anuário Brasileiro de Segurança Pública 2020. [Acesso em 2021 mar 6]. Disponível em: https://forumseguranca.org.br/wp-content/uploads/2021/02/infografico-2020-final-100221.pdf
- Presidência da República. Casa Civil. Subchefia para Assuntos Jurídicos. Lei nº. 13.104, de 9 de março de 2016. [Acesso em 2021 mar 6].
- Fleury RE, Sullivan CM, Bybee When ending the relationship does not end the violence: women’s experiences of violence by former partners. Violence against woman 2020; 6(12): 1363-1383. https://doi.org/10.1177/10778010022183695.
- Jewkes Intimate partner violence: causes and prevention. Lancet 2002;359(9315):1423-1429. https://doi.org/10.1016/S0140-6736(02)08357-5
- Hart BJ, Klein AE.Practical Implications of Current Intimate Partner Violence Research for Victim Advocates and Service Providers [Acesso 2021 mar 6]. Disponível em: https://www.ojp.gov/pdffiles1/nij/grants/244348.pdf
- Fávero F. Medicina Legal. Livraria Martins Fontes; 1966. p.384.
- Instituto de Pesquisa Econômica Aplicada (Ipea), Fórum Brasileiro de Segurança Pública (FBSP). Atlas da Violência 2018. Disponível em: http://www.forumseguranca.org.br/wp-content/uploads/2018/06/FBSP_Atlas_da_Violencia_2018_Relatorio.pdf
- Instituto de Pesquisa Econômica Aplicada (Ipea), Fórum Brasileiro de Segurança Pública (FBSP). Atlas da Violência 2020. Disponível em: https://www.ipea.gov.br/atlasviolencia/download/24/atlas-da-violencia-2020.
- Cerqueira D, Moura R, Pasinato W. Participação no mercado de trabalho e violência doméstica contra as mulheres no Brasil. Instituto de Pesquisa Econômica Aplicada. 2019. [citado 2021 jan 19]. Disponível em: https://www.ipea.gov.br/portal/images/stories/PDFs/TDs/td_2501.pdf.
- Centers for Disease Control and Prevention. Intimate partner violence: definitions. [citado 23 maio 2019]. Disponível em: https://www.cdc.gov/ violenceprevention/intimatepartnerviolence/ definitions.html.
- Garcia LP, Silva GDM da. Violência por parceiro íntimo: perfil dos atendimentos em serviços de urgência e emergência nas capitais dos estados brasileiros, 2014. Cad Saúde Pública [Internet]. 29 de março de 2018 [citado 18 de janeiro de 2021];34(4). https://doi.org/10.1590/0102-311×00062317.
- Schraiber LB, d’ Oliveira AFPL, Portella AP, Menicucci E. Violência de gênero no campo da Saúde Coletiva: conquistas e desafios. Ciênc saúde coletiva. agosto de 2009;14(4):1019–27. https://doi.org/10.1590/S1413-81232009000400009.
- Garcia LP, Freitas LRS de, Höfelmann DA. Avaliação do impacto da Lei Maria da Penha sobre a mortalidade de mulheres por agressões no Brasil, 2001-2011. Epidemiol Serv Saúde. setembro de 2013;22(3):383–94. http://dx.doi.org/10.5123/S1679-49742013000300003.
- Poder Judiciário. Tribunal de Justiça do Estado do Rio Grande do Sul. [Acesso 2021 mar 6]. Disponível em: https://www.tjrs.jus.br/novo/busca/?return=proc&client=wp_index
- Ministério da Saúde. Gabinete do Ministro. Portaria nº 104, de 25 de janeiro de 2011. Define as terminologias adotadas em legislação nacional, conforme o disposto no Regulamento Sanitário Internacional 2005 (RSI 2005), a relação de doenças, agravos e eventos em saúde pública de notificação compulsória em todo o território nacional e estabelece fluxo, critérios, responsabilidades e atribuições aos profissionais e serviços de saúde, [citado 20 jan 2021]; Disponível em: http://bvsms.saude.gov.br/bvs/saudelte. egis/gm/2011/prt0104_25_01_2011.html.
- Presidência da República. Secretaria-Geral. Subchefia para Assuntos Jurídicos. Lei nº. 13.931, de 19 de dezembro de 2019. Altera a Lei nº 10.778, de 24 de novembro de 2003, para dispor sobre a notificação compulsória dos casos de suspeita de violência contra a mulher. Disponível em: http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2019/lei/L13931.htm.