The year 2016 started with everything.
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In São Paulo, we had a carnival of proportions never seen before. While many people were having fun, unfortunately, there were also those who took the opportunity to disrespect others.
Reports of machismo, racism and homotransphobia are not at all rare.
And, as A Capa is a portal aimed at the LGBT community, why not talk about cases of homophobic and transphobic harassment that cowardly took revelers by surprise?
With that in mind, in today's article, I want to talk about what to do if you have been a victim of homophobic, lesbophobic, biphobic or transphobic harassment.
So let's go. First I will talk about criminal activity. Afterwards, I will talk about civil and administrative action, two other spheres of action that are also possible. If you have been the victim of a physical attack, first of all, gather something like 2 or 3 witnesses to what happened and look for the nearest police station to file a police report, which many people know as BO
If the attack was serious, call 190. And, if witnesses do not want to accompany you, they can at least help by providing their full name and contact telephone number.
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Once at the police station, you have the right to demand respect for your social name, in order to be called or called by it and in order to include the same in the Bulletin.
In the state of São Paulo, this right is guaranteed by State Decree 55.588/2010, which can be accessed by clicking here. Furthermore, if you believe that the aggression has an intolerant motivation, that is, for the simple fact of being LGBT, demand that this be included in the Bulletin. This is also a guarantee given by the state government and which we must enforce.
The police authority must then refer you to the Legal Medical Institute, where you will undergo a forensic examination, which will document the injuries suffered and, some time later, provide a medical report. A copy of this report will be sent to the police authority and another can be obtained by yourself from the Scientific Police.
If the injury suffered is of a minor nature, that is, if it does not leave you unable to work for 30 days or more, you must return to the police station to represent yourself against the attackers. Otherwise, the police authority will not have your authorization to begin investigations, and nothing will be done. If the injury is medium or severe, the investigation will take place regardless of your authorization. If you have been the victim of a verbal attack and/or threat, here in São Paulo, you can register a police report via the virtual police station (to access it click here).
After recording the facts in the most objective way possible, you must go to the police station indicated in the Electronic Police Report to represent against the suspects. And then the police investigation begins.
The investigation should follow its natural course and at this stage you can hire a lawyer to help the police with this task. By gathering evidence that the crime actually occurred (materiality) and that indicates the authorship (who committed it), you can open a Criminal Action against your attacker.
Outside of criminal action, you also have the right to sue the aggressor and other parties responsible for him in the civil and administrative spheres. This is where what we call “objective liability” comes into play. This means that you can sue both the person who directly discriminated against you and the company or institution that is responsible for their actions at the time of the crime.
For example, if you were the victim of an attack (no matter the type) carried out by a public official in the exercise of his/her role, you must sue the public authority (municipality, state or Union), which will ultimately pay the amount to which you are sentenced by the court. judge.
If you were attacked inside a club, whether by an employee or another patron, you can also sue the club, after all, it must ensure the safety of its customers.
And what evidence should you gather to file a civil and/or administrative action? Keep in mind that you need to prove that the assault actually occurred and that you suffered damages because of it, no matter how minor they may seem.
If you were hit, record in photos how the bruises marked you. You can also use other evidence to your advantage, such as statements from witnesses attesting to having witnessed the attack and the worsening of your quality of life resulting from it. For example, before you were a less tense person and an easy sleeper, but now you struggle to concentrate and sleep.
These are hypothetical examples, but they actually happen to victims of discrimination, so take them seriously. Not just with witness statements, but also seek medical help. If possible, seek psychological counseling. (And you can't avoid saying that there's a lack of money, because, at least in the city of São Paulo, there is the City Hall's LGBT Citizenship Center, which offers free psychological assistance to victims of discrimination.)
Later, this psychologist may even testify in your favor at the Forum – or simply sign a statement addressed to the judge explaining how your life was affected by the aggression suffered. With sufficient evidence, you can file a Compensation Action to seek conviction of those responsible.
This amount, if you win, at the end of the process, will be all yours. At the same time, here in the state of São Paulo (as well as in Rio de Janeiro and Rio Grande do Sul), you can also file a Representation under State Law 10.948/2001, which provides for penalties ranging from a simple warning to a fine (approximately R$ 20 to 60 thousand reais) and, in the case of legal entities, it can lead to suspension or even revocation of the state operating license.
For those who live in a house with a monthly family income of up to three minimum wages (approximately R$2.700,00), a good option is to seek completely free help from the Public Defender's Office. In São Paulo, it even has the Specialized Center for Combating Discrimination, Racism and Prejudice, which is recognized for its very combative and intelligent actions, such as when Levy Fidelix was condemned for homophobic statements during the 2014 presidential elections.
For those who live in a house with a family income higher than this amount, the option is to look for a private lawyer. You just can't stop chasing your rights.
* Thales Coimbra is a militant lawyer and specialist in LGBT law (OAB/SP 346.804); graduated from the Faculty of Law at USP, where, between 2009 and July 2015, he founded and coordinated the Study Group on Law and Sexuality, and where he is currently studying a master's degree in the area of philosophy of law on homophobic hate speech; also works as a lawyer at the Arouche LGBT Citizenship Center, at São Paulo City Hall; and writes biweekly about Rights on the portal A Capa. www.thalescoimbra.com.br
