President Luiz Inácio Lula da Silva (PT) sanctioned, on January 11, a law that equates racial injury with the crime of racism.
With that, speeches that contain elements referring to race, color, ethnicity or national origin understood as offensive by people or groups considered to be minorities become imprescriptible and non-bailable, as it already happened in the crime of racism.
With the new law, which endorses the 2021 decision of the Federal Supreme Court (STF) in the same sense, the penalty for racial injuries also increases: the maximum punishment, which was three years in prison, is now five years.
With the enactment of the norm, other devices were added to the so-called Racism Law (Law 7.716/89) which, according to sources heard by Gazeta do Povo, pose risks to freedom of expression.
The main one is to frame the telling of jokes about any groups that may be considered a minority as a crime of racism.
On the other hand, there is also an excerpt that can criminalize speeches by religious leaders within their temples that may be interpreted as contrary to practices of Afro religions.
MAXIMUM PENALTY FOR JOKES WITH MINORITY GROUPS IS HIGHER THAN FOR THEFT AND KIDNAPPING
One of the sections of the rule sanctioned by Lula determines that the crimes provided for in the Racism Law will now have their penalties increased by one-third to one-half “when they occur in context or with the intention of relaxation, fun or recreation”.
The law also determines that if the practice of alleged racism occurs in the context of artistic or cultural activities aimed at the public, the author will also be prohibited from attending these places for three years.
One of the risks for the possible framing of merely jocular statements, which are part of the humorous activity on stand-up stages, for example, as racism is that the law provides a wide range for conduct that can be considered criminal at the same time in which does not specify which groups the jokes are banned from.
Article 20-C of the norm says that when interpreting the law, “the judge must consider as discriminatory any attitude or treatment given to the person or to minority groups that causes embarrassment, humiliation, shame, fear or undue exposure, and that usually does not would dispense to other groups on the basis of color, ethnicity, religion or origin”.
In the opinion of Antônio Pedro Machado, master in Constitutional Law, the legislation was not restricted to equating racial injury with racism, and the removal of jokes from the repertoire of comedians will be one of the consequences of this expansion of the law.
“Jokes involving people belonging to an ethnic group, very common in the context of a stand-up comedy show, for example, can now be considered a more serious crime”, explains Machado.
“The big problem is the extent of the interpretation, which can be given to any type of conduct. The law also does not specify who these minority groups are, and these generalizations are very worrying. There is no precision and, on the other hand, there is a range, which allows interpreting the facts within a context that does not exist”, says a jurist consulted by the report who is black and granted an interview on the condition of anonymity for fear of reprisals from activists. “There is, yes, the risk of condemning people who are not racist for racism and it is precisely to avoid this that there was the crime of racial injury without equating racism”, he continues.
Machado, on the other hand, points out that the vagueness of the expression “minority groups” should be the subject of debates in the courts and will possibly be left to the jurisprudence of the STF.
It is worth mentioning that the new rules that criminalize jokes with certain groups bring greater penalties than for crimes such as theft, receiving stolen goods and kidnapping. In addition, the imprescriptibility factor (that is, crimes do not prescribe over time) applied to these behaviors is not even used for homicide and rape in the country.
RELIGIOUS SERMONS ARE ALSO IN THE CROSSHAIRS
In another section, the norm expresses that if the practice of alleged racism occurs in the context of religious activities aimed at the public, the perpetrator will be prohibited from attending places intended for sports, artistic or cultural practices for three years, in addition to the prison sentence, which can reach five years.
In the assessment of the sources heard by the report, the measure could criminalize statements by Christian religious leaders who speak, in their sermons, against practices originating from Afro religions.
“Ultimately, there may be this type of interpretation and prohibit a pastor, for example, from saying anything in that sense”, explains Machado.
“If a priest or pastor makes a comment [involving practical cases of Afro religions] in a homily, lecture or preaching runs the risk of being framed in this legislation. This will mainly put evangelicals in a tricky situation. There will be an increasing limitation on freedom of expression of opinion”, adds the jurist who spoke on condition of anonymity.
PT SENATOR PROPOSED EXPANDING THE LIST OF PRACTICES CONSIDERED RACIST
The text that originated the law is authored by federal parliamentarian Tia Eron (Republicanos-BA) and was approved in the Chamber in November 2021. The parliamentarian’s proposal was to typify the crime of racial injury as racism when committed in public places.
In May 2022, four days after the strong public repercussion of the case of the player Edenilson, at the time an athlete for Internacional, who claimed to have been the victim of racial abuse in a game against Corinthians, the Senate also approved the bill.
However, Senator Paulo Paim (PT-RS), rapporteur for the project, proposed expanding the scope of the measure and equating racial injury to racism in other cases.
Because of this change, the text had to go through the Chamber again, being approved in December 2022.
The final wording approved by the National Congress had a contribution from a draft drawn up by the Commission of Jurists to Combat Racism, established by the Chamber of Representatives.
The current Minister of Human Rights and Citizenship in the Lula government, Silvio Almeida, and the executive secretary, Rita Oliveira, were part of this commission.
With information from Gazeta do Povo