ENCARCERAMENTO FEMININO, PRISÃO DOMICILIAR E (DES)IGUALDADE JURÍDICA: POTENCIALIDADES E INCERTEZAS DA MATERNIDADE NO CONTEXTO PRISIONAL

Abstract

According to the latest data published in official reports, it is possible to notice that the incarceration of women in Brazil has been showing a dizzying rise, with great emphasis on the number of provisional arrests and the incidence of the crime of drug trafficking.
The lack of public policies that consider prison from a gender perspective, given the structural inadequacy and sensitivity to women's needs, makes the effects of prison even worse, notably in the case of women who are mothers or pregnant women.
In order to implement the so-called Bangkok Rules, in 2016, Law n. 13.257, which amends the Code of Criminal Procedure, stating that the judge "may" replace preventive detention with home detention when dealing with a pregnant woman or woman with a child up to 12 years of age. In view of the judicial discretion allowed by the law, several requests were denied by the national courts, even under arguments of a moralistic nature, considering certain women unfit to exercise motherhood. The present work aims to analyze the tone of the speech in the jurisprudence of the Rio de Janeiro Court of Justice, based on judgments that granted or denied house arrest to women accused of drug trafficking, in order to verify (I) if the norm is being applied in an equal way and (II) if decisions that deny the law reproduce moralistic aspects, especially with marks of a macho and patriarchal culture.