Abstract
The goal of this paper is to analyze Brazilian anti-racism law in practice, assessing judicial response to cases of racial stigma and insult. We analyzed over 200 cases from 9 Brazilian states involving racial insults and racial disparagement in Brazilian courts of appeal. We find that the judiciary tends to downplay the importance of insult and stigma, often dismissing cases or lowering penalties. This judicial treatment conflicts with the evidence that racial insults are prevalent in society and serve to maintain racial hierarchies. While the judiciary appears to be enforcing anti-discrimination law, the actual decisions show that the legal system fails to recognize and deal with the real dynamics of Brazilian racism thereby reinforcing the myth of Brazil racial democracy.
Highlights
Judiciary tends to downplay the importance of insult and stigma, often dismissing cases or lowering penalties
While the judiciary appears to be enforcing anti-discrimination law, the actual decisions show that the legal system fails to recognize and deal with the real dynamics of Brazilian racism thereby reinforcing the myth of Brazil racial democracy
Individual criminal liability depends on the process of interpreting and applying criminal law, criminal procedural law and the general criteria developed by legal doctrine to consider if an individual’s conduct is a crime
Summary
Stereotypes and racial insults are mutually reinforcing and are an effective mechanism that explains the persistence of racial inequality in daily life. Lima showed how racial stereotypes reflect the social positions of black people in Brazilian society, with powerful consequences in the labor market. This idea started to be confronted by Roger Bastide and Florestan Fernandes in the 1950’s in their book Relações raciais entre brancos e negros em São Paulo (Racial relations between whites and blacks in São Paulo), published in 1955. Gladys Mitchell-Walthour finds high level of black racial groupness in Salvador, Sao Paulo, and Rio de Janeiro and this group identity is largely due to experiences of racial discrimination. Against this background, in what contexts are there racial insults? The incomprehension of the performativity of racist discourse by Brazilian Courts, as we will see below, is expressed in the cases in which the racial aspect is disregarded to favor only the inter-subjective conflict; or in cases in which the Court does not recognize the author’s racist intention
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