A law published on the 15th included the crimes of bullying and cyberbullying in the Penal Code. The lack of clarity in the new classifications has been criticized by criminal experts. Some still point out that the criminalization of these conducts reveals a Brazilian tendency to create unnecessary types of criminal offenses with little or no practical effect.
Lawyers point to national trend of criminal classifications with no practical effect
The standard defined bullying as systematic, intentional, repetitive intimidation without obvious motivation, carried out “through physical or psychological violence”. These are acts that may involve humiliation, discrimination and other “verbal, moral, sexual, social, psychological, physical, material or virtual” actions. The penalty is a fine, applied if the conduct does not constitute a more serious crime.
Cyberbullying is the virtual version of this systematic intimidation, promoted on the internet, on social networks, in applications, in online games or in any other digital environment. The penalty is two to four years in prison and a fine.
For the criminal lawyer Celso Sanchez Vilardiprofessor at the São Paulo School of Law at Fundação Getulio Vargas (FGV Direito SP), “it is clear that Brazil today is trying to criminalize minor conduct.”
In his view, cyberbullying “can be regulated by Criminal Law”, as it is a more serious conduct, due to its greater reach — as it is committed over the internet, it affects a greater number of people.
“Bullying could not become a crime”, assesses Vilardi. “The type of criminal offense should not be a matter regulated by Criminal Law, so much so that the penalty is a fine, as it is a crime with less offensive potential.”
According to the criminalist, bullying “could be resolved in the civil sphere”. Thus, the new criminal classification “shows a tendency on the part of the legislator to criminalize all conduct”.
The criminalist Paula Moreira Indaleciopartner at the firm Mattos Filho, also sees the new crime of bullying as “another example of inappropriate, superficial and symbolic use of Criminal Law”.
This scenario goes far beyond the typification of bullying. “There is a tendency to expand Criminal Law, criminalizing new conduct or increasing the penalty for existing ones”, points out the criminal lawyer André Luís Callegariprofessor at the Brazilian Institute of Education, Development and Research (IDP).
According to him, “this phenomenon occurs in several countries, but has little practical effect”. There is also a “symbolic Criminal Law, which would have the purpose of reassuring the population” with the idea — mistaken — that the creation of criminal types is synonymous with combating crime.
New criminal type of bullying is highlighted as an example of the criminalizing trend
A simple reason demonstrates how representative the new law is of this Brazilian criminal trend: “Bullying generally happens in schools, and the criminal type does not apply to minors under 18 years of age”, indicates Vilardi.
For Indalecio, “if the legislator had considered the Criminal Law in force for decades, he would have realized that the conducts he intended to cover are already considered more serious crimes, such as threat, illegal embarrassment, insult, defamation, damage, sexual crimes and bodily injury, among others”.
All of these examples are already existing crimes and considered more serious than bullying. In the case of criminal or “systematic” repetition, the penalties must still be increased. Even minor crimes, such as unlawful restraint and threat, still carry the possibility of a prison sentence.
The new crime of bullying requires the practice of violence — something that, “in its various forms”, is also protected by Criminal Law, with more severe penalties than a simple fine.
As the rule provides that the penalty should only be applied if the conduct does not constitute a more serious crime, “therefore, there is doubt as to what would be a situation of systematic intimidation less serious than those listed”, points out the lawyer.
In other words, there is no reason to apply the crime of bullying, unless the Public Prosecutor’s Office decides to charge it just to enforce the new classification.
The fine penalty itself, according to Indalecio, “reveals the lack of concern in harmonizing the new article with the current legal system, for several reasons”.
According to the criminalist, there was no “assessment of the worthlessness of the conduct and results of the possible situations listed”, as the fine was foreseen for any form of systematic harassment — whether caused by verbal, material, sexual or any other actions.
“In other words, the legislator placed absolutely different conducts in the same basket, which affect different legal interests, providing them with the same fine penalty”, he points out.
Typifying behaviors is not necessarily synonymous with combating them
According to the lawyer, “Criminal Law should never be seen as a lifeline and an effective solution to deeper social problems”. She recalls that Law 13,185/2015 has already brought better alternatives to dealing with bullying, by establishing the Program to Combat Systematic Intimidation.
“More efficient than creating yet another practically innocuous crime would be to invest time and energy in a broad and continuous debate on this topic, involving experts, jurists and society in general, with oversight of the implementation of public policies and the adoption of preventive measures” , he concludes.
Tip of the iceberg
The new law is, in fact, just a symptom of an epidemic in Brazilian Criminal Law. Although the tendency is to create criminal types, the criminalist André Lozano Andradeprofessor at Universidade São Judas Tadeu (USJT), says that “typifying conduct does not necessarily combat crime”.
The effect is often the opposite, as “the Justice system and the police are limited in both personnel and money, which means that the more typified conduct we have, the more money and human capital will be diluted to prevent and investigate, making it impossible to prevent crimes or investigate crimes committed.”
In other words, if the newly criminalized conduct “is not prioritized by law enforcement agencies, it will not be combatted, as it is impossible to combat all crimes.” Therefore, in most cases, according to Andrade, criminalization is only symbolic.
The lawyer identifies a tendency in Brazil to ignore public policies and pay attention only to the criminalization of conduct. This causes violence to increase or, at the very least, remain stable.
“It’s as if we treated cancer with painkillers, as the root of the problem will remain intact, but, to the electorate, it will appear that the problem has been resolved”, he compares. “This, in the long term, brings discredit to public institutions, as they are not capable of curbing violence.”
The criminalist cites other examples of norms and classifications created with this mentality. One of them is the 2019 Abuse of Authority Law, which he sees as merely symbolic: “Those who judge and investigate are colleagues of those who commit it. This means that it is not applied.”
Another unnecessary classification, according to him, is terrorism, regulated in 2016 by the Anti-Terrorism Law: “We don’t even have this type of problem in Brazil and whenever it was applied there was, at the very least, suspicion of political use”.
In 2015, a qualifier (hypothesis of increasing the sentence) was included in the Penal Code for the crime of homicide when committed against a woman “for reasons of female sex” — feminicide.
For Andrade, this is yet another example of unnecessary prediction, “since, in practice, the perpetrators of this crime were already punished for qualified homicide”. In both cases, the penalty is twelve to thirty years in prison.
Creation of criminal offenses involves a populist idea of reassuring the population
Penalty increases for existing crimes are also part of this trend. In 2018, for example, several options for increasing the penalty for the crime of theft were included. “Increasing the sentence will not curb any conduct”, he states.
In the lawyer’s view, “it is not possible to say that politicians typify certain conducts solely out of political opportunism”. This also often occurs due to the lack of “technical knowledge necessary to understand that classifying a conduct will not have practical effects”.
But, for him, it is “undeniable that there is criminal populism” in the three Powers. Politicians, for example, know that “approving a certain law will send a message to their electorate and that will bring them votes”, even if criminalization does not bring any advantage.
Callegari also warns that classifying a conduct is not always synonymous with combating it: “In many cases there is an overlap of existing criminal types, making it unnecessary to create a new incriminating conduct”, he explains.
Thus, “the classification communicates to society that crime is being combated, but in practice it does not work this way”.
For him, accelerating the time for producing laws to classify new conduct without an in-depth discussion “has a satisfying character that responds to the social outcry, but does not mean that it will solve the problem”.
Although the objective is to reassure the population, “often this symbolic Criminal Law ends up being applied, in practice, with harsh measures to those who find themselves prosecuted and convicted”.
Vilardi says that, in addition to bullying, several other crimes, mainly against the national financial system (such as currency evasion and fraudulent management of a financial institution), “are minor conducts, which should generate punishments in the civil sphere, and not in the criminal sphere” . For him, Criminal Law should only be used for serious conduct.
“I have been saying for a long time that the Brazilian penitentiary system can no longer handle the prison population”, he points out. “The responsibility for this excessive number of prisoners is linked to the fact that many crimes should not generate imprisonment, but alternative sentences. Penitentiaries should be reserved for highly dangerous criminals.”