Equating racial slurs with racism: advances and recognition in antiracism legislation
On January 16, 2023, during the historic appointment of Anielle Franco as minister for racial equality, President Luiz Inácio Lula da Silva promulgated Law 14,532 of 2023, which classifies racial slurs as equivalent to the crime of racism, thereby increasing the penalty applicable to this crime from 1-3 to 2-5 years of imprisonment. In practice, the law removed racial slurs from the category of “crimes against people’s honor” in the Penal Code, moving them to the category of crimes resulting from prejudice based on race or skin color, as provided for by Law 7,716 of 1989.
For lay people, it may sound strange to even debate whether racial slurs (offending someone else’s subjective and personal honor for reasons of race or skin color) are equivalent to the crime of racism. However, for legal experts and the day-to-day operation of the justice system, this is not a trivial difference. The new law will have two concrete effects. First, there will be a symbolic effect, signaling to society that offending someone else’s personal honor for reasons of race or skin color, one of the most common manifestations of racism, deserves to be taken seriously. Academic studies[1] have long revealed that racial insults against black people are one of the main manifestations of racism in Brazilian society, and this has not been recognized by the law as racism. Second, there will be an impact on how the justice system functions, since by including racial slurs within the crime of racism, in accordance with constitutional provisions, wrongdoers will no longer be able to benefit from bail or the statute of limitation.
It is worth pointing out that before this law was promulgated, in October 2021, in judging Habeas Corpus Case 154,248, the Federal Supreme Court deemed that racial slurs were a type of racist crime and therefore the period of prescription is not applicable. At the time, the court refused the habeas corpus petition filed by the defense attorney of a woman condemned for making racial slurs, requesting the extinction of the sentence because of the passage of time (or technically speaking, the lapse of the statute of limitations). By deeming the crime of making racial slurs to be equivalent to the crime of racism, the court recognized that the statute of limitation is not applicable.
Before offensive racial language was deemed equivalent to the crime of racism, it was consistently classified as the crime of racial defamation and almost never as the crime of racism, due to the understanding that developed among Brazilian courts that made a distinction between offensive racial language directed at an individual (racial defamation) and at a group of people (racism).
This differentiation criterion – heavily criticized by black movement activists – was enabled by a legislative change brought about by Law 9,459 of 1997, which included offenses of a racial nature within the crime of defamation, as provided for by article 140 of the Penal Code. The initial aim of this alteration was to punish offensive racial language more severely, given that in most of the criminal lawsuits at the time, this type of language tended to be classified as the crime of simple defamation, despite its clear discriminatory nature related to race or skin color (Matos, 2017).
The main consequence of this differentiation was that the crime of racial defamation became a less serious racial crime, with a smaller penalty, and those accused were able to remain free while waiting for their trial by paying bail. It was also possible for criminal proceedings to expire. On the other hand, bail and the statute of limitation do not apply to the crime of racism.
In practice, this meant that racial crimes were mostly recorded and prosecuted as racial defamation rather than racism. According to a recent study on racial crimes by Fundação Getulio Vargas’ Center for Racial Justice and Law (2022), 84% of complaints are registered as racial slurs in Sao Paulo. This shows that most judges have chosen not to use the harsher option allowed by the law on crimes related to racial prejudice.
By adding an instrument that provides for specific penalties for these cases, the law innovates by demonstrating that racist offenses cannot be considered as mere jokes devoid of intentionality (or “recreational racism” to use Adilson Moreira’s term) but must instead be recognized as the crime of racism and handled in the manner provided for by legislation. According to Sueli Carneiro (1996), a prominent black intellectual and activist in the Brazilian black movement, the downgrading of the crime of racism to that of racial defamation reveals the little interest with which racial discrimination is treated in Brazil and demonstrates that legal professionals have always downplayed the importance of punishing racism.
Accordingly, equating racial defamation to the crime of racism is in line with criticisms made by black movement activists who have pointed out that the downplaying of this type of crime has generated impunity, as well as ignoring the importance of combating racism in Brazil, completely at odds with demands for recognition of the violence experienced by historically marginalized groups in Brazilian society.
Furthermore, the new law provides even greater penalties for cases of racism that occur in the context of recreation and banter. This point also constitutes an important advance brought about by the new law, insofar as one of the main obstacles to the recognition of racial crimes by magistrates has been an alleged “lack of intention” to offend someone, especially in contexts of “heated discussion” or when it was considered that the accused party was just “joking” when uttering the insults (Machado et al, 2016).
Despite the new law, the road to racial equity is still long. The justice system has historically been reluctant to see the racial underpinnings of a given crime, even when evident. Given that on average, a young black man is killed every 23 minutes in Brazil,[2] there is an urgent need for legal scholars to discuss how to make the legal system more committed to racial justice. The new law opens the door to this issue but does not definitively solve any problems.
[1] MACHADO, Marta Rodriguez de Assis; LIMA, Márcia; NERIS, Natália. “Racismo e insulto racial na sociedade brasileira: dinâmicas de reconhecimento e invisibilização a partir do direito.” Novos estudos CEBRAP, v. 35, p. 11-28, 2016.
[2] https://g1.globo.com/distrito-federal/noticia/a-cada-23-minutos-um-jovem-negro-morre-no-brasil-diz-onu-ao-lancar-campanha-contra-violencia.ghtml.
