Entre discursos e efetivação da Lei Caó: caracterização do crime de racismo pelos atores do direito no Estado do Espírito Santo

Abstract

This research aims to investigate the (in)effectiveness of the constitutional rule of Fundamental Law that criminalizes racism, regulated by Law No. 7,716/89, known as the Caó Law. The study was developed within the scope of the Postgraduate Program in Fundamental Rights and Guarantees at the Faculdade de Direito de Vitória (FDV) and is based on the premise that racism is consolidated in Brazilian culture and crosses organs of the justice system, therefore it's not enough to affirm the law for its implementation. Considering the growth in records of racism complaints and the difficulties in accessing such data due to the recent computerization of the system, this research uses Foucault's analytical statements to answer the following question: how do legal actors, especially members of the Court of Justice (TJ) of the State of Espírito Santo, have they applied the Caó Law in the last 10 years? The hypothesis was that the judges' speeches, as legal actors, bear the marks of institutional and legal racism and, at times, make racist crimes invisible. To respond to this investigation, a case study was carried out on the TJ-ES rulings found on the justice website that deal with racism and racial insults in the period from 2012 to 2022, as well as an analysis of the speeches produced by these legal actors in the reasoning and judicial decisions. The methodology used was a qualitative approach with a descriptive basis and focusing on the analysis of Michel Foucault's discourse for the case study of 10 judgments. Initially, a literature review was carried out in order to have contact with several authors who deal with the topic of this research. As a result, it is concluded that the judges' speeches, as actors of TJ-ES Law, bear the marks of constitutionally historical and institutional racism that, at times, make racist crimes invisible and hinder the implementation of the Caó Law