Understand the new law that equates racial injury to racism

The equation of the crime of racial injury with that of racism, sanctioned this week by President Luiz Inácio Lula da Silva, corrects a distortion, say experts consulted by Agência Brazil. “This change in the law comes to repair a great injustice”, says the president of the Racial Equality Commission of the Brazilian Bar Association (OAB) in São Paulo, Irapuã Santana do Nascimento da Silva, in reference to Law 14,532 of 2023.

Irapuã explains that the crime of racism is provided for by Law 7,716 of 1989, but that, in 1997, there was a change that ended up creating the differentiation between racist offenses directed directly at a person and racial discrimination. “If we look at what happened within the legislative process, in the dead of night, they simply put racial slurs in the Penal Code instead of in Law 7716.”

Thus, in practice, injury has become a less serious crime, with a shorter penalty, which could have the possibility of punishment extinct after a specified period, unlike racism, which is imprescriptible. Likewise, the racial insult provided for the possibility of the accused responding freely with the payment of bail, which is not authorized in the case of racism.

According to Irapuã, the legal change follows the recent understandings of the higher courts. In October 2021, the Federal Supreme Court (STF) understood that the crime of racial injury does not prescribe and that cases could be criminally framed as racism.

Mackenzie Presbyterian College professor and author of the book Recreational RacismAdilson Moreira, says that racial injury is one of the forms of discrimination based on race, color or origin.

According to Moreira, racism is when an intentional and arbitrary act is committed to put a racialized person at a disadvantage. This can happen by denial of rights, by non-provision of services by a public or private institution, by impeding access to jobs. These behaviors were already explicitly prohibited by the law that punished racism.

Injury, emphasizes Moreira, is an attack on honor, in the case of a racial offense, involving a person’s color, race or origin. “[É] when a particular message affects one’s sense of personal worth.”

Despite the differentiation between the behaviors that prevailed until last week, the professor says that the intention of the actions is the same. “It is an intentional act that seeks to impose a disadvantage on someone”, he points out. “Motivated by stereotypes, by false generalizations about a certain group, by the idea that these people, being inferior, do not deserve either the same opportunities or the same level of social respectability that white people have.”

lack of punishment

However, the legal distinction between injury and racism meant that, in practice, there was no punishment for most crimes. “Practically no one has yet been convicted of the crime of racism,” he says. “What many lawyers have always done was request the downgrading of the crime of racism to the crime of racial injury”, he adds.

In Moreira’s assessment, this also has to do with law enforcement by the police and the judiciary. “A large part of court judges have little or no knowledge of what racism is, what discrimination is, what anti-discrimination law is. And furthermore, our courts are fundamentally white, upper-class heterosexual people. Therefore, there has always been a denial of the social relevance of racism, whether by the delegates, the Public Ministry, or the judges.”

The new law is right, in the professor’s opinion, by bringing tougher penalties if the racist offenses occurred in cultural, sporting or humorous environments. For Moreira, jokes and alleged pranks are a way used to practice racism in a hidden way. “When white people, or institutions controlled by white people, use hostile humor to reproduce racial stereotypes to target black, Asian, and indigenous people,” he explains.

The professor emphasizes that the hatred and contempt expressed in this way often serve to guarantee the space of white people in better social positions, to the detriment of black and indigenous people. “What lies behind this naughty racism is white supremacy [ideia de que as populações brancas são superiores às demais]”, emphasizes the actions that end up creating environments in which black people cannot remain.

Citing a real example, Moreira recounted the case in which a black woman who assumed a leadership position in a bank was the target of a coordinated attack with jokes and racist insults by other employees in her sector. She ended up quitting because of the level of hostility in the work environment. If she had simply been fired, the case could be classified as racism, while the offenses, before the new law, could only be classified as racial injury, despite having the same result in practice.

The penalties for injury in the new law, initially between two and five years in prison and a fine, can also be increased if the offenses are made to attack someone’s religiosity. According to Moreira, attacks on African-derived religions are a “very serious” problem in Brazil and have essentially come from “religious radicals” from some evangelical currents.

Translated to english by RJ983

From Brazil, by EBC News

Scroll to Top