TV presenter sentenced to two years in prison by São Paulo's Court of Justice; experts say inciting violence against LGBT+ community is a crime
Renata Okumura, O Estado de S.Paulo
In legislation, there is no specific crime of homophobia in Brazil. But a decision by the Supreme Court (STF) in June 2019 recognized homophobia and transphobia as forms of racism in the country. With this, homophobia can be defined as the practice, induction, or incitement to discrimination or prejudice against homosexuals, transsexuals, or against heterosexuals who are eventually identified by the aggressor as LGBTs (lesbian, gay, bisexual, and transgender).
According to the Racism Law, it is a crime to practice, induce or incite discrimination or prejudice based on race, color, ethnicity, religion or national origin. Thus, while Congress does not vote a specific law for homophobia, homophobic and transphobic conducts will be framed in the foreseen crimes, as determined by the STF. Specialists believe that the conviction of TV presenter Gilberto Barros, who received a two-year sentence, is in accordance with the law.
The presenter was convicted by the Court of Justice of São Paulo (TJ-SP) last Friday, 12, for encouraging and practicing homophobia, a sentence to be served in open initial regime. According to the complaint, on September 9, 2020, during the program broadcast on Youtube, he practiced and induced discrimination and race prejudice, under the aspect of homophobia. The sentence also provides for the payment of 10 days fine and community service for the same period of time.
"The presenter's case was taken to court because he stated, during a program broadcast on YouTube, that he would assault and vomit if two men kissed in front of him. This conduct is perfectly framed as the one exposed in the law. And it is not the first case. It may have been one of the first in the media, but this situation, unfortunately, is quite common in Brazil," said Vitor Poeta, Master of Laws, specialist in Criminal Procedure.
In general, homophobia is defined as a series of negative feelings or attitudes that discriminate or prejudice against homosexuals. Sentences vary from one to three years in the common form, and from two to five years in the aggravated form, for example, in the case of widespread dissemination of the homophobic practice in the media, such as publications in social networks. A fine is also possible.
"The conviction of the TV host Gilberto Barros Filho is very important, because he offended and incited violence against homo-affective couples by saying that if two men kissed in front of him, he would vomit and hit them," says Paulo Iotti, lawyer and one of the people responsible for the lawsuit that led to the criminalization of homophobia in Brazil. "The conviction for the crime of homophobic racism helps to consolidate the understanding that homotransphobic speech is intolerable," he says.
"The fact that this decision was made against a public person is an even greater positive reflection, since in the position occupied by him there is a clear influence on other people," says Livia MoraesLivia Moraes, a specialist in Digital Law and President of the Special Committee for Sexual Diversity of the OAB/SP - Butantã Subsection.
For her, there is no room for a defense claiming that the presenter had no intention of inciting violence. "Even more so when we look at a scenario of lines reproduced on a digital channel, which reaches thousands of people from all regions of Brazil (and even outside the country). The Internet is a platform, a large auditorium, which in this case was used to utter homophobic offenses," said the expert.
In the evaluation of Matheus Falivene, doctor and master in Criminal Law from the Law School of the University of São Paulo (USP), any act of discretion or prejudice against homosexuals can be considered a crime, provided that all legal requirements are present. "Preventing access to certain places, preventing hiring, promoting speeches that encourage discrimination or prejudice against this group, among other discriminatory conducts," he said.
The representation against Gilberto Barros was made by journalist William de Lucca Martinez, also a witness in the case. Martinez said that the issue touched him as a gay man. He said that he often receives information about disrespectful situations through social networks.
In turn, the presenter's defense requested his acquittal, for atypicality of the conduct. In the case records, Gilberto Barros confirmed his speech, but denied the accusation. Estadão has not yet been able to contact the presenter's counsel.
Freedom of speech vs. homotransphobia (homophobia + transphobia)
The difference between freedom of speech and homotransphobia is that the former does not allow hate speech, which the STF has defined as incitement to violence, segregation, and discrimination.
"You cannot call LGBTI+ people names or generalize pejorative characteristics or offensive adjectives. For example, I said on the stand of the STF in this trial that saying that being LGBTI+ would be a "sin" is a right to religious freedom, but calling a person a "dirty sodomite" is not. Offending in this way is a crime," says Iotti.
Iotti also cites linking homosexuality to pedophilia as a crime. "Saying that the person is LGBTI+ because he supposedly comes from a 'broken family'. That the LGBTI+ movement is trying to 'sexualize children' or abuse them. These are real speeches from day to day homotransphobic hate speech. The problem is that many people think that just swearing at people or having them beaten or killed would be committing racism, a concept in which the STF has correctly framed homotransphobia, but this is uncritical simplism, a fallacy, a very mistaken position," he explained.
Falivene adds that the distinction between racism and freedom of speech, guaranteed as a fundamental right by the Constitution, is in the 'animus', that is, the intention, the intention of the agent. "If there is the intention to offend, there is a crime. However, if the intention is different, such as, for example, to make a criticism, a serious scientific debate or a religious debate, there will be no crime," explained the lawyer. However, the specialist reinforces that the right to freedom of expression is limited by other rights that are also constitutionally guaranteed.
"Freedom of expression should not be considered absolute. Like every guarantee or principle, when it clashes with other fundamental rights or guarantees, such as that of the dignity of the human person, it must be measured, pondered, and sometimes restricted. For example, no one can claim freedom of expression to utter racist insults against a person or make a homophobic statement," says Poeta. "In the case of presenter Gilberto Barros, he didn't need to assault anyone, but just expressing this hate speech is already considered the criminal type," he added.
In other situations, it can happen, for example, the case of someone who is rejected in a job opening because of his sexual orientation, prohibition to go to certain places, among others of this nature. " Thus, for an act to be typified and framed as homophobia, it is necessary that racism be committed, but the ethnic condition must be altered, for example, to include the sexual condition of another," says Poeta.
How to make a complaint
To report a crime, all that is required is for the person to file a report, either in person or online. The report can be made directly to the police or through government reporting channels, such as Dial 100. In case of flagrante flagrante, call 190.
