A mulher e a "via crucis" da violência doméstica e familiar - do privado ao público, do público ao privado judicializável

Abstract

This study investigates the forms of social participation of women throughout history. Therefor, it starts using the historical method with literature review. In preparing the evolutionary chart of women's social participation, it was noted that its restriction to the private dimension of the house was common from antiquity to the modern age. So, the dissertation has used the doctrine of Jürgen Habermas (Structural Transformation of the Public Sphere) and Nelson Saldanha (O Jardim e a Praça). The situation of women passes from the complete social exclusion, when it was kept into the private dimension of the house, to a discreet publicization, initiated in the bourgeois family by the literary public sphere. By the publication of novels that portrayed the particularities of daily family life, clubs appeared to discuss the readings, although still restricted to men. These clubs have grown with the explosion of artistic renaissance, enabling the institutionalized press, which in turn evolve, transforming the literary public sphere in the political public sphere. We propose an empirical research and we verified that actuality the printed press of Recife diffuses the patriarchal ideology, which legitimizes familiar domestic violence against women. Returning to the evolutionary chart, we observe that the first form of social integration of women was the integration, through the purge of the difference between the sexes. Thus the woman was forced to masculinize themselves to ratify the alleged equality. With the decay of this process, the daily family went into crisis. The current trend of integration not only of women but also for the other excluded is inclusion, that does not despise the differences but value them in a cyclical view, where each member of society is crucial in the formation of the whole. The Lei Maria da Penha was enacted to pacify an extreme situation of domestic violence, especially after Brazil had been considered negligent in this matter by the OAS. But, as contrary to the dominant patriarchal paradigm in our society, this statute sparked controversy and it was raised its unconstitutionality. While it is not appreciated by the competent court (STF), it generates the judicialization of domestic violence against women. To measure this we took two opposing votes of a Recurso Especial (STJ 1.097.042/DF) which changed the current model since the validity of the Lei Maria da Penha, by requiring the representation of the battered woman for the criminal prosecution of the crime de lesão corporal leve, qualified by domestic violence (art. 129, § 9, CPB). Analyzing the corpus, we found that the position that requires the expression of the will of the victim fits as integration, since it presupposes that a woman has the same conditions of a man for taking the decision to denunciate her spouse (partner). It clashes with the current global multiculturalist movement, which considers the diversity. We also showed that the dissenting vote portrays the process of social inclusion of women by the inclusion, since it uses affirmative action to ensure safety in view the gender inferiority that threatens historically. At this point, the woman still cannot be claimed as equal to men!