Brazilian Superior Court of Justice Decides that Victims of Domestic Violence are Entitled to Paid Work Leave – While New Legislation Could Hinder Their Right to an Adequate Standard of Living

by | Sep 19, 2019

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About Natalia Brigagao

Natalia Brigagão is a Victor Nunes Leal Chair at the Supreme Federal Court of Brazil and a Lecturer of the Brazilian Interdisciplinary Course of Human Rights. She graduated with a Magister Juris from the University of Oxford as an Oxford-Weidenfeld and Hoffmann Kofi Annan Scholar at Mansfield College. A researcher in human rights, constitutional law, and international law with several publications, including in books edited by an ICJ Judge and an Oxford Journal, Natalia was formerly a Visiting Student at Harvard University and holds an LLB from the Federal University of Uberlândia, Brazil. She writes in personal capacity.

Citations


Natalia Brigagão, “Brazilian Superior Court of Justice Decides that Victims of Domestic Violence are Entitled to Paid Work Leave – while New Legislation could Hinder their Right to an Adequate Standard of Living”, (OxHRH Blog, September 2019), <https://ohrh.law.ox.ac.uk/67663-2/>, [Date of access].

The Brazilian Superior Court of Justice (STJ) established a new precedent asserting that women who suffer domestic violence are entitled to a court-determined paid work leave of six months or less. Employers must pay the first 15 days of salary, while the National Institute of Social Security (INSS) is responsible for providing for the remaining leave time. Protecting the victims’ right to work, the ruling assists them in escaping cycles of violence, which are often caused or strengthened by women’s financial dependency in relation to perpetrators. Unfortunately, the same cannot be said about legislative changes established this month.

Filling a normative gap

Work leaves are protective measures previously stipulated by the 2006 Maria da Penha Statute – which resulted from a recommendation of the Inter-American Commission of Human Rights in the case of a domestic violence victim whose name became the law’s title. However, even though stepping away from work has long been an option for victims, labor and social security laws have so far been silent about the possibility of salary.

Analyzing this omission, the Superior Court considered that victims must not have their subsistence hindered by the very same measures that are supposed to safeguard them. It established that, as long as there is a normative gap on leave remuneration, sickness pay shall be applied to such cases. For the Court, the offence to the physical and psychological integrity of victims of domestic violence can be equated to illnesses contemplated by social security norms.

To corroborate its argument, the STJ referenced the development of Maria da Penha case law, in addition to the Convention on the Elimination of Discrimination against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Belém do Pará Convention). It also cited Article 9 of the Maria da Penha Statute, according to which “assistance to women… will be provided… in accordance with the principles and guidelines provided in the Organic Statute on Social Assistance”. The latter declares, in its Article 2, II, that one of its principles is the “universalization of social rights”.

Paid leave conditions are still less than ideal

Domestic violence victims are qualified to receive to the benefit as long as the leave is mandated by a court specialized in domestic violence, or a criminal court in its absence. A ruling is, however, insufficient, as victims must present a medical report issued by the INSS declaring work incapacitation, a prerequisite of overall sickness pays.

This demand poses a barrier to appropriate access to wage, given that demonstrating work incapacitation due to domestic violence can be considerably trickier than proving specific illnesses. Reports can thus be highly discretionary – and the INSS should not be able to trump a court determination.

The statutory change that might hinder the victims’ right to an adequate standard of living

The STJ ruling comes in the same month the Maria da Penha Statute was altered to hold perpetrators financially accountable to the government. According to the new paragraphs added to Article 9, aggressors are now required to compensate all damages caused not only to victims, but to the public healthcare system as well. Even though unpaid access to the system is a constitutional right, domestic violence perpetrators must reimburse the costs related to the health services provided to victims and the safety devices made available for monitoring them.

Although the new text states that such reimbursement shall not imply any burden on the estate of women and their dependents, in cases in which aggressors are married to the victims or provide spousal or child support, it is unclear how the new policy will impact those the Maria da Penha Statute is supposed to protect. The change raises concerns about victims from economically disadvantaged backgrounds, who may refrain from seeking help in fear of how it will affect their families’ livelihoods or have their living standards impaired if they do decide to come forward.

Differently from the Superior Court, the legislature seems to have neglected considering the role of financial dependency in the lives of victims of domestic violence – or decided that their rights are unimportant in the face of the government’s financial interests.

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