In a rare decision, the defendant is convicted of offending the victim and the black community
“I found this slave here at the smokehouse! Whoever owns it warns! ”
For this message in a WhatsApp group, denounced in March 2018, Gustavo Metropolo, then a student at the Getulio Vargas Foundation in São Paulo, was condemned by the São Paulo Justice for the crimes of racism and racial injury. The post was accompanied by a photo of his college colleague João Gilberto Lima, who is black.
Metropolo was sentenced in the first instance to two years and four months of imprisonment, converted into community services and a fine, in addition to payment of five minimum wages to the victim. The decision is rare for convicting the defendant for two crimes, racism and racial injury, for the same act.
One of the legal obstacles to punish racist acts is precisely to define whether the case in question is an offense directed at the victim due to his color (racial injury) or to the entire collectivity of black people (racism).
In the case of a former FGV student, Judge Paloma Carvalho, decided that “the defendant's conduct was directed at both the community and the victim”.
Doing so in other cases is legally possible, depending on the concrete situation, but comes up against restrictive interpretations. It is not uncommon for the Judiciary to disregard the racial aspect of offenses, either by qualifying them as mere jokes, or by minimizing them as words spoken in the heat of the debate without an offensive intention.
Today, the Federal Supreme Court is discussing whether or not to equate the crime of racial injury to the crime of racism - especially if the former would be imprescriptible or not.
The Constitution states that “the practice of racism constitutes an unspeakable and imprescriptible crime”. Suspended by a request for views in December 2020, the trial had only the votes of Minister Edson Fachin, in favor of the match, and Kassio Nunes, against.
It is not to be expected that the criminal law alone will be able to curb racism. This requires everything education against discriminatory practices to whistleblowing channels at multiple levels of society, through due judicial rigor. After all, everyone must learn that there are no slaves in the country.