In 2017 and 2018, the judiciary was severely condemned by court rulings that raised doubts about compliance with the principles of gender equality and non-discrimination in court. After the controversy, which sometimes went beyond the limits of a rational debate, there were allegations that the courts protect male aggressors and discriminate against female victims. Among the various ways of responding, it was necessary to choose the most responsible, even if it may not be the most convenient, and some said it was the riskiest. Hiding problems is not a solution to anything. In view of the suspicion of such a constitutional error, it was necessary (as I wrote on February 27, 2019: “The two sides of the mirror”, PUBLIC) to find answers to three fundamental questions: Is there any gender discrimination in court? ? Do decisions vary depending on the gender of the judge? Are the sentences too mild?
These answers cannot be based on inflamed assumptions about individual cases. They must be based on an analysis of reality that is serious, objective and verifiable using scientific methods. Two studies were carried out: an evaluative study of court decisions on domestic violence and sexual violence against adults ”at the School of Criminology at the Faculty of Law of Porto, which analyzed 369 decisions made between 2015 and 2019, and a descriptive study of judgments on appeal Against Domestic Violence of the Working Group for the Analysis of the Case Law on Domestic Violence, which upheld 270 appeals judgments from 2005 to 2019.
The first conclusions were known on International Women’s Day:
– There is a very high conviction rate for crimes of domestic violence and sexual violence, usually involving male attackers and female victims.
– Even if there are a preponderant number of suspended sentences, which are more visible in domestic violence crimes than in sexual violence crimes, the reaction of the courts is determined by the application of the legal criteria established for setting sentences and their condemnation regime;
– The judgments and judgments show no signs of inequality or language that reveals discriminatory prejudice.
– Court decisions are not influenced by non-legal motivational factors such as gender, nationality, personal status and the occupation of the attacker and victim (if these factors were to prevail in determining penalties, they would indicate discriminatory practices);
– There is a greater likelihood of conviction for the domestic violence crime if the victim is a woman and the perpetrator is tried by a judge in a single court, although this loophole no longer appears once the sentence is set.
This last conclusion, which is broadly in line with the results of similar studies in other countries, forces us to delve deeper into the analysis. It is certain that the mismatch is not due to the fact that there are more judges than judges in the first instance, as this factor has been taken into account. On the other hand, there is no scientifically valid reason to find the answer in the most intuitive statement that women are more sensitive to this crime because they identify more with the victims. The study only identifies a statistical difference without specifying the causes. Hence, it is speculative to try to guess these.
The final reports of these works will be published shortly and can be reviewed and contradicted. For the moment 4 ideas are relevant: Criticism, even if it is exaggerated, is not only legitimate but also healthy because it can influence institutions and lead to internal reflection and correction of practices; There is no reason for citizens not to trust justice, which is proportionate to the constitutional parameters of gender equality. In the formation of public perceptions, there can be a disconnect between what the law tells the courts to do and what people want them to do. The studies now being carried out cannot be a starting point; they must be a starting point for deepening an internal reflection, even if at the beginning it turns out to be expensive and requires courage.