Violência contra a mulher: o descumprimento das medidas protetivas e a aplicação da prisão preventiva

Abstract

This paper aims to critically reflect on the application of pretrial detention in cases of noncompliance with urgent protective measures provided for in Law No. 11,340/2006 (Maria da Penha Law). The research is based on the approach that the law constitutes an important legal framework for protecting women in situations of domestic violence, but its effectiveness has been limited, given that many victims suffer from recurrence of violence. Throughout the research, we sought to analyze and understand how pretrial detention is applied in order to understand the criteria adopted for its establishment. To this end, we conducted bibliographical research, analyzed applicable legislation, and analyzed court decisions to demonstrate the foundations and limits of its use, as well as its function as a protective instrument in the context of violence against women. The results demonstrate that, although pretrial detention does not offer a structural solution to the historical-cultural problem of violence against women, in most cases, it is the most severe concrete tool the justice system can employ to protect victims, their integrity, and their lives. However, the experience of the Brazilian penal system demonstrates that the use of pretrial detention, when implemented automatically and disproportionately, tends to reinforce penal selectivity and punitive logic, without effectively addressing the structural causes of violence. Therefore, it is clear that pretrial detention must be applied judiciously and with reason, considering the specificities of each case. Its effectiveness, therefore, is intertwined with the strengthening of public policies aimed at welcoming, protecting, and holding offenders accountable, under penalty of perpetuating a deficient and insufficient protection model.