Judicial Restorative Justice and Domestic Violence in Brazil: Setting Problems and Challenges from the Field

What this is about

This article analyzes the application of restorative justice practices in domestic violence cases within the Brazilian Judiciary, promoted by the National Council of Justice (CNJ) since 2010. The authors discuss their risks and possibilities on the basis of empirical studies carried out in the Court of Justice of Rio Grande do Sul, a pioneer in the use of these practices. It is addressed to those who research, design, or apply restorative programs, especially in the context of the Maria da Penha Law. Its approach is critical and feminist: it examines judicial protagonism, the cultural references imported from circles, and the way women experience these interventions. It concludes that the practices are residual and do not alter the traditional model, and it calls for a broad debate before extending them.

Annotated table of contents

• Introduction. Presents data on violence against women and femicides in Latin America and Brazil, with emphasis on Black women. Points to the shortage of courts dedicated exclusively to domestic violence and to the CNJ's push for mediation, conciliation, and restorative justice without adequate evaluation.
• Restorative Justice and Domestic Violence: An Open Debate. Reviews the concept of restorative justice as an open notion still under construction. Briefly compares experiences in New Zealand, Austria, Canada, and Portugal, where the possibility of a restorative meeting in domestic violence cases was repealed in 2015.
• ‘Brazilian Restorativism’: The Protagonism of the Judicial System in the Institutionalisation of Restorative Practices. Reconstructs the trajectory from the 2005 pilot projects to CNJ Resolutions 125/2010 and 225/2016, with the influence of Kay Pranis and peacemaking circles. Summarizes a 2019 CNJ survey of the initiatives existing in the courts.
• Risks and Challenges in the Application of Restorative Justice in Cases of Domestic Violence. Discusses the idea of mending families, stereotypes about victims, the generic training of facilitators, and the judiciary's self-referentiality in designing the policy. Collects objections from professionals and the proposal to think of reparation as rebuilding one's own story.
• The Pioneering Experience of Restorative Justice for the 21st Century and the Inclusion of Domestic Violence in Rio Grande do Sul State. Describes the institutionalization of the program of the Rio Grande do Sul court and its extension to domestic violence courts. Synthesizes research on circles in São Leopoldo and Novo Hamburgo that warns of case selection by the judge, invitations experienced as obligations, and materials that reinforce gender stereotypes.
• Final Considerations. Argues that Brazilian judicial restorative justice remains residual, poorly understood, and judge-centered. Proposes a discussion with social movements and with women to build a democratic model compatible with the legislation on domestic violence.
• References. Gathers the bibliography cited, with Brazilian sources, CNJ regulations, and international studies on restorative justice and gender-based violence.

Key ideas

• In Brazil restorative justice is judicial: the Judiciary itself funds, implements, and regulates it, far from its community origins.
• The expansion of these practices in domestic violence cases responds to institutional decisions by the CNJ rather than to evidence of their results.
• The empirical studies reviewed show that the practices are residual and do not change the traditional criminal model.
• Women tend to experience the circles as therapy or couple reconciliation, not as occasions for accountability and reparation of harm.
• When the referral is decided by the judge at a hearing, the voluntariness of women in vulnerable situations is open to doubt.
• The imported circle model draws on cultural references foreign to Latin American and Brazilian history and may reproduce gender stereotypes.
• The aim should not be forgiveness or family peace, but responding to the concrete needs of each victim.
• The authors call for a broad discussion, with the participation of social movements and women, before the model is consolidated.

Practical uses

• What risks should be considered before offering a circle in a domestic violence case?
• How can we ensure that an invitation to a restorative process is not experienced as an obligation?
• What filters should be set to decide whether a conflict can be referred to restorative justice?
• What should be reviewed in the materials and training of facilitators so as not to reinforce gender stereotypes?
• What lessons do other countries' experiences offer about the need to evaluate and monitor these programs?

Key terms

judicial restorative justice, domestic violence, gender-based violence, Maria da Penha Law, National Council of Justice, Resolution 225/2016, peacemaking circles, revictimization, voluntariness, accountability, reparation of harm, Rio Grande do Sul, Brazilian restorativism