Mariana Ferrer case: leaving the victim is common in rape cases, lawyers report

“You used to work in the cafe, you lost your job, you rent seven months late, you were a stranger. It is your support for the misfortune of others.” At another moment, Rosa Filho shows another image of Mariana Ferrer. “This photo taken from a photographer’s website, where the only thumb-sucking photo is this one, and with gynecological postures.”

Then the promoter starts crying and asks for respect. “What is it? None of those accused of murder are treated the way they treat me, for God’s sake. I have never committed a crime against anyone,” he says.

For Juliana Sá de Miranda, partner of Machado Meyer Advogados, treatments like this have been common in cases of sexual violence in hearings throughout Brazil.

“In general, this is the type of treatment against the victim of rape and harassment. Often the victim ends up becoming the villain, there is a deconstruction of the victim’s image. They talk about her clothes and behavior, implying that she consented. (This behavior of the lawyers) is more or less expected, ”says Sá de Miranda.

Mariana Zopelar, criminal lawyer at Fenelon Costódio Advocacia, says that, in many cases, an attempt is made to judge the victim based on characteristics that have nothing to do with the process. “I repudiate this kind of unethical excess. Often, the attempt is to obtain an external element about who the victim is, what he did, to try to show that there was consent,” he says.

“Unfortunately, it is common to dismiss the victim as a defense thesis in sexual crimes,” says a criminal law judge from the state of SP, who has worked in the area for almost 30 years and was heard by BBC News Brazil. “It is common to try to reverse the burden of proof, but at the level that this case has reached, I have never witnessed it,” says the judge.

“It is a strategy that unfortunately exists when the victim is vulnerable,” says criminal lawyer Yuri Carneiro Coelho, professor of criminal law and criminal process at Faculdade Nobre and UNEF. “In this case, it was filmed, but sometimes it goes without being filmed and ends without having this repercussion.”

However, law professor Maíra Zapater says that it is not correct to say that the use of this strategy is common without research. “I would not generalize without a practical survey that demonstrates this fact. Defense attorneys who are super serious do not deserve to be included in this survey,” says the criminalist.

The report tried three times to speak with lawyer Cláudio Gastão da Rosa Filho, but did not receive a response.

What attorney Rosa Filho did at the hearing, talk about the victim’s past and curse her, should not have happened, lawyers say.

“It is something that should not have been allowed because the things he was talking about had absolutely nothing to do with the process,” says Maíra Zapater, a professor of criminal law and criminal process at Unifesp.

For the criminal judge heard by BBC News Brazil, Rosa Filho’s attitude went beyond the limits of what was allowed in a hearing.

“Unfortunately, there is this thesis that the defenses state that the victim is to blame. But in this case, all limits have been exceeded. (If the person is humiliated in this way), the lawyer’s attitude ceases to be a defense and it becomes a crime of insult and defamation. “

Zapater, who studies sexual crimes, explains that in the crimes of rape the prosecution must show that a sexual act has taken place and that there has been dissent from the victim, that is, that she did not want that act.

“This is because the crime of rape is described as ‘shaming someone, through violence or a serious threat, into committing a libidinous act,'” Zapatar explains.

And, in the rape of the vulnerable, certain conditions of the victim are equated with the existence of violence: that is, even if the victim says that she wanted, if she was under 14 years old, if she was drunk, asleep or unconscious, the expression of will. it has no legal validity ”, he explains.

In the case of the rape accusation made by Mariana Ferrer, there is no controversy that there was a sexual act. There is evidence that proves the act that she says happened and the expert report shows that there was penetration, ejaculation and rupture of the hymen.

“The question in the case is whether she consented or not,” Zapater explains. Mariana says she was drunk and does not remember, so it would be the case of rape of vulnerable people.

“Why is all this relevant to understanding the lawyer’s conduct? Because what he did at the hearing has nothing to do with the process,” says Zapater. “The fact that you take photos and post on Instagram, the fact that you are a virgin or non-virgin, the fact that you have had any conduct in the case is not relevant for this production of evidence (in relation to whether you gave your consent or no). That should not have been allowed because the lawyer was extrapolating what was in the file, it had nothing to do with the process, “says Zapater.

The Unifesp professor recalls that Mariana Ferrer is not in the lawsuit as an accusation, she does not have a defense attorney.

“We do not know to what extent it was being used by the lawyer to confirm previous prejudices that the prosecutor had, that the judge had,” says Zapater.

“In general, Brazil is so punitive, so accusing, it is a country that endures a lot, but when it comes to crimes when women are victims, all that concern about the innocence of the accused appears. Especially when what is taken as evidence is the word of the victim ”, says Zapater.

The professor of criminal procedure says that both the MP and the Justice ignored that Ferrer said she was drunk and had no capacity to give her consent. They also dismissed elements presented by her that corroborate her version.

“And when we add that to the lawyer’s statement, it shows how much there is still a macho mentality that judges the conduct of women who are victims of sexual crimes,” says Zapater.

The criminal judge heard anonymously by BBC News Brazil explains that during the hearing the judge exercises police power, that is, he can define what is going to be discussed and the form that the process will take.

In theory, he explains, the judge could take steps to ensure that the victim does not suffer humiliation.

“That hearing was going to be a problem, because if the judge fired the lawyer later, he could be represented by a reduction of the defense. But in theory he could say ‘doctor, let’s get on with the file’, theoretically he could take measures so that the victim it didn’t go through all that, ”he says.

“It would be up to both the judge to repress and the member of the Public Ministry to ask the judge to act,” says criminalist Yuri Carneiro Coelho.

The Corregedoria Nacional de Justiça installed an investigation into the conduct of the judge of the TJ-SC at the hearing, at the request of the counselor Henrique Ávila, of the National Council of Justice. “What we saw was disgusting. The correctional agency needs to find out the facts,” he said.

Senator Fabiano Contarato (Rede-SC) also filed a complaint against the prosecutor in the case at the National Council of the Public Ministry.

Zapater explains that although the defense attorney may ask the victim questions, she was not there to be questioned or charged with anything.

“The lawyer can be subjected to a disciplinary process by the OAB (Brazilian Bar Association) in his state or Ferrer can file a lawsuit for moral damages against him,” he explains.

“I have no doubt that the position of lawyer exceeded the limit of what is considered acceptable for the right of defense,” says Carneiro Coelho. “In that case, he turned an act of defense into an act of public humiliation.”

Judge Rudson Marcos said in the sentence that there was no evidence to prove that the promoter was drunk or that André Camargo de Aranha knew of Ferrer’s lack of resilience.

The judge does not say that there was “wrongful violation”, a term that ended up being one of the most talked about topics on Twitter after the publication of the video of the hearing on the website The Intercept. A guilty crime is a crime committed without deception, that is, without intention.

The use of the term “culpable rape” was in a passage quoted by the judge to explain why to be vulnerable to rape “it is necessary that the victim, for whatever reason, does not have the physical or psychological conditions to offer resistance to the violation. criminal agent attack “. The term is part of the book Schematic criminal law, volume 3: special part, Cleber Masson, in which the author cited by the judge would have written “since the guilty modality of vulnerable rape was not foreseen, the fact is atypical”.

The term ended up among the most commented topics on Twitter because there is no ‘guilty rape’ modality in the Brazilian legal system, that is, it is not possible to commit this crime unintentionally. But the passage cited by the judge does not question this, it only says that there is no wrongful violation, the lawyers explain.

“What the judge alleged is that there was no evidence that the defendant knew that Ferrer was in no condition to resist the sexual act,” explains criminal lawyer Mariana Zopelar, who analyzed the sentence in the case.

In other words, what the judge says is that, even if Ferrer was drunk, he could not be seen and the accused would have no way of perceiving it. For this reason, the judge said, the case would be a “type error”, that is, it is not possible to prove that André Camargo de Aranha’s conduct conforms to the criminal types that describe the violation and rape of vulnerable people in the code penal.

As the prosecutor himself (who makes the accusation) requested the acquittal of the accused, the judge could not have condemned him, explains Zapater.