A REFLECTION ON THE EFFECTIVENESS OF THE MARIA DA PENHA LAW IN COMBATING DOMESTIC AND FAMILY VIOLENCE AGAINST WOMEN: RETHINKING THE LAW IN THE LIGHT OF THE CONSTITUTIONAL PRINCIPLE OF EQUALITY

Abstract

Law 11,340/06, widely known as the Maria da Penha Law, aims to create mechanisms to curb domestic and family violence against women, as well as establish assistance and protection measures for victims. At the same time, it complies with the international conventions that the country has ratified, designed to combat this type of violation. However, in the Brazilian legal context, this norm has faced challenges related to its constitutionality in relation to the principle of equality enshrined in the Federal Constitution. Some argue that the law could be seen as unconstitutional from the perspective of gender equality, since it establishes special protection measures for women victims of domestic violence, while men do not receive similar treatment in cases of violence. However, most jurisprudence and legal debates in Brazil maintain that the Maria da Penha Law is constitutional, based on arguments that it is justified by the need to combat a specific form of violence historically targeted at women. This justification takes into account the so-called "positive discrimination" or "affirmative action", which aims to correct historical and structural inequalities between genders. In this sense, the Federal Supreme Court (STF) of Brazil has expressed itself in favor of the constitutionality of the Maria da Penha Law on several occasions. In fact, Declaratory Constitutionality Action No. 19 (ADC/19), understood that Law 11,340/06 does not violate the principle of equality, as it is a positive action, which aims to correct the injustices that women have suffered throughout of time. Therefore, the law remains in force as a fundamental instrument to combat gender-based violence in the country, balancing the principle of equality with specific measures to protect women in situations of domestic violence.