A PRISÃO DOMICILIAR DE MULHERES SOB A ÓTICA DO DIREITO À CONVIVÊNCIA FAMILIAR DA CRIANÇA: UMA ANÁLISE DA JURISPRUDÊNCIA PARAIBANA

Abstract

Imprisonment, a space of violations to human dignity, disregards gender particularities, casting on women criminal and moral condemnations that reverberate in motherhood and in their children's childhood. The rupture of the bonds between mother and child is the most striking circumstance for the experience of women in prisons, and in no small proportion, to the development of infants. In this sense, it is important to consider family life an essential element for the development of children as subjects, especially in their first six years of life, a phase in which the absorption to the external situations and factors of the environment are attenuated. In the sense of bringing mother and child closer, the Criminal Procedure Code brings up the procedural instrument of home detention for women who experience maternity under legal requirements contained in articles 318, 318-A and 318-B and under particular aspects of each concrete case analyzed by the criminal justice. Therefore, the indispensability of the study when analyzing if the legal discourses of 2018/2019, concerning the conversion of preventive detention to home detention, of the Court of Justice of Paraíba, consider the right to family life of the child in the decision making act and if these discourses remained in 2021/2022. To fulfill the objective, the study proposed bibliographic and documental research, both notably qualitative and quantitative in nature. During the bibliographical research, books, theses, articles, and dissertations on the reality of maternity in prison, of childhood, and interconnected themes were collected to compose the theoretical framework. In the documental research, we gathered data about the women, the structure of the prison units and the children contained in the official reports of institutes and penitentiary organs, as well as gathered jurisprudence in order to analyze the legal discourses. The legal discourses were present in the entire contents of the Criminal Habeas Corpus of 2018 and 2019 of the Court of Justice of Paraíba. Only the decisions that did not grant house arrest were collected. In all, 46 decisions from the years 2018 and 2019 were analyzed. In 2021 and 2022, 8 (eight) decisions from both years were analyzed, being three from the year 2021 and five from the year 2022, chosen by sampling. The results of the years 2018 and 2019 were compared with the findings of the years 2021 and 2022. The results of the research pointed out that the legal discourses tend to disregard the pertinence of the child's family life with their mothers, and are directed to arbitrary, subjective and patriarchal positions about women considering them irresponsible mothers due to the practice of crime, pointing out that the distancing and the imprisonment of the mothers would be beneficial to the infants. Furthermore, it was verified that, even after four years of legislative advances, the legal discourses still remain. It is concluded that, despite the ample legislative framework of child protection, the justice system goes against the healthy development of the child, because it treats the rights of women and children in an antagonistic way. Moreover, they position themselves in a paradoxical and simultaneous way of granting and violating guarantees based on prejudices that cut across markers of race, class, and gender.