O “direito” ao silêncio da vítima de violência de gênero no processo penal: uma análise de discurso a partir de Michel Foucault

Abstract

In a political-social-cultural scenario in which gender violence produces numbers that cannot be accepted in a civilized society, this research intends to analyze whether the so-called “right” to silence of the victim, within the scope of the criminal procedure that investigates the responsibility of the aggressor, protects the woman or is the result of the action of mechanisms of hegemonic power, which maintains the established order, that is, androcentrism/machismo. This is a subject in the beginning of discussion in the legal field and that still depends on strong debates to be consolidated, mainly in the sphere of the Superior Courts, which demonstrates the relevance of the questioning. Thus, at first, it analyzes, in a historical-social-cultural digression, worldwide and in Brazil, how the construction of female inferiority occurred and influenced the current situation of Brazilian women. It identifies how gender violence was treated in the social sphere, correlating it with power techniques, and in the field of law, before and after the legal framework of the Maria da Penha Law. It presents and analyzes the legal arguments that support the so-called "right" to silence of the victim of gender violence. Finally, it analyzes the institutional discourse of the Judiciary Power regarding the subject addressed, based on the decision handed down in the Right Action of Unconstitutionality (ADI) nº 4.424/DF, by the Federal Supreme Court and, also, in the decisions handed down by Courts of Justice found on the question itself, in order to answer the question previously formulated. Once the object of analysis was defined – the judicial decisions mentioned above – the following analytical categories were chosen: a) the principle of the dignity of the human person; b) family preservation X the protection of women victims of gender violence; c) victimization of the victim as an impediment to the obligation to speak; and d) the Judiciary and power relations, where Michel Foucault's “theory” is applied, referring to power and discourse, associated with the technique of discourse analysis, as well as Judith Butler's category of agency. Faced with a qualitative analysis of the chosen "corpus", it was possible to conclude that, despite the efforts towards equality, the hegemonic power, firmly entrenched in the institutions, adapts, and is always transformed in the sense of its maintenance, presenting itself as the aforementioned “right” in question as a manifestation of this same power disguised as protection of the victim