Brazilians are bound by law to ensure certain basic rights for their children. Article 277 of Brazil’s Constitution states: “It is the duty of the family, of society, and the state to ensure to children and adolescents, with absolute priority, the right to life, health, food, education, leisure, professional training, culture, dignity, respect, family and community life, as well as to protect them from all forms of neglect, discrimination, exploitation, violence, cruelty and oppression.”
There are several other legal (and constitutional) provisions in Brazil related to protection of children against all forms of abuse, violence, and sexual exploitation. Some lawyers hail the country’s constitutional and statutory protections to be a model to the world in all it says about children’s rights.
UNICEF, for instance, describes Brazil’s Child and Adolescent Statute (ECA), a legislation created to implement constitutional provisions regarding the protection of children’s rights, as one of the most advanced in the world.
Likewise, jurists from the Inter-American Commission on Human Rights maintain that the ECA embraces a “special concept” of children’s rights, “introducing innovations in the policy of promotion and defence of their rights in every dimension: physical (health and food); intellectual (the right to education, professional training, and protection in the workplace), emotional, moral, spiritual and social (the right to liberty, to respect, to dignity, to harmonious family and community relationships)”.
The basic problem in Brazil is nonetheless the huge distance separating children’s rights as inscribed in law from their effective exercise or guaranty in practice. For although the 1988 Constitution and the ECA provide children with “fundamental” rights, such rights frequently do not meet with compliance.
According to Joseph A. Page, “Nowhere does the gap separating rhetoric and reality emerge more starkly than in the contrast between the guarantees afforded children by the 1988 Constitution and the cold-blooded assassination of boys and girls who live on city streets. If there is anything that most vividly symbolizes the perversity of the contemporary wave of violence in Brazil, it is the way it has victimized children.”
One of the ECA authors has suggested that the law is in this sense not properly applied because Brazilians still have to “become aware of the fact that… parents are supposed to protect their children, local authorities should assist parents and, finally, the right place for a child is in school”.
In reality, however, the ECA and constitutional provisions on this particular matter are very far from being “good” laws.
Whereas teenagers are allowed to vote at the age of 16, they are not criminally liable until 18 years of age. According to the Brazilian Constitution, “minors under 18 years of age may not be held criminally liable and shall be subject to the rules of the special legislation.”
As a result, every 17-year-old murderer, even if a notorious serial killer, is interned no more than three years in an “education establishment.” This status of impunity has led thousands of children to work (and risk their lives) in criminal organizations.
In Brazil, explains Ambassador J.O. de Meira Penna, “Minors often form the backbone of criminal gangs, feeling secure against police enforcement on account of legal impunity… The absurd situation that has brought disrepute to Brazil results from the legal and intellectual pretence of classifying murderous teenagers as ‘abandoned children.’ As they cannot be legally incriminated or kept out of trouble by legal means, the easy way out for brutal and ignorant police officers is simply to kill them right away, whenever possible”.
The number of homicides committed against children and teenagers has risen dramatically over the last 15 years, since the “progressive” ECA was enacted as federal legislation in 1991, growing 77% between 1994 and 2004.
In 2003, 72% of all deaths of teenagers between the ages of 15 and 19 were due to violent causes related to homicide, suicide, and traffic accidents. Homicide is actually the major cause of death for children aged 10 to 14, although less than 2 percent of their murderers serve prison sentences.
It is important also to consider that both the 1988 Constitution and the ECA stipulate that teenagers between the ages of 14 and 17 cannot work in hazardous, unhealthy, nocturnal, or morally harmful environments.
In practice, however, even small children have been working in activities such as drug trafficking and prostitution. A 2002 report from the International Labor Organization (ILO) reveals that about 3,000 girls from the sparsely populated state of Rondônia were subject to conditions of forced labour and prostitution.
Working children are the most vulnerable to all sorts of accidents in the workplace. There are many reports of children illegally working in areas like the charcoal, sugarcane, and footwear industries. They have reportedly suffered accidents like “dismemberment, gastrointestinal disease, lacerations, blindness, and burns caused by applying pesticides with inadequate protection”.
The law also states that children can only travel with the permission of their parents. But in practice, everybody knows that many children are trafficked for prostitution. Girls from rural areas have been recruited at major cities as prostitutes by strip clubs, modelling agencies, and wanted ads. In places along the coast, sexual tourism involves the prostitution of children by travel agents, hotel workers, taxi drivers, etc.
The United Nations estimates that no less than 500,000 children in Brazil are victims of sexual exploitation. The U.N. also reveals that in some parts of the country, particularly in the northern and northeastern regions, “most sexual crimes against children and adolescents are not investigated, and in some cases representatives of the judiciary are involved in those cases.”
In 1992, members of Brazil’s National Congress set up a special parliamentary commission to investigate the problem of child prostitution. The commission discovered, among others, the involvement of police officers in child prostitution.
In fact, even politicians themselves are involved in this sort of prostitution. In 2003, for instance, police caught five Porto Ferreira (São Paulo) city councillors having group sex with minors between the ages of 11 and 16, whom they had paid with drugs and/or US$ 11 to US$ 18.
More recently, another detailed investigation conducted by Congress in July 2004 discovered hundreds of politicians, judges, and businesspeople participating in the sexual exploitation of minors, which included the appalling sexual abuse of nursing babies.
It was found, among others, that the vice-governor of Amazonas was procuring sexual services from a prostitution network that recruited 16-year-old girls. However, the congressional committee’s coordinator, Patricia Saboya, accused the Lula administration “of doing practically nothing to investigate or punish those involved.”
Figures now reveal that 7 million children live on the streets of Brazilian cities. The simplistic suggestion that all these children live on the streets because of poverty must be rejected.
In contrast to what is commonly believed, the testimony of children themselves reveals other pressures beyond the need to earn money. They are homeless mainly because of parental neglect, speaking of episodes of sexual abuse and other forms of extreme violence. Naturally, they would not be on the streets if it were not for the lack of government action as well as the actions of civil society.
Street children are utterly deprived of their most basic needs. They do not have home, school, adequate food, or medical care. They often become victims of death squads or other forms of violence born of their precarious condition.
Since street children often resort to theft to survive, some pay death squads to “clean up the streets” and rid them of this “inconvenience.” Many people in Brazil, unfortunately, strongly believe that the extra-legal killing of street children is a valid measure to combat criminality and violence, arguably because they have utterly rejected the unrealistic legal ‘solutions’ for the problem.
As Joseph A. Page properly asserts: “What rackets up public outrage against street urchins even higher is the cloak of impunity that protects children who kill, assault, and rob. The legal system does not brand them criminals but instead uses the more euphemistic term infratores (lawbreakers) and does not subject them to punishment.
“Under a statute enacted in 1990 (i.e., the ECA), a lawbreaker under 12 years of age is generally released into the custody of his family or surrogate family. A lawbreaker over 12 will be sent to a state institution specially designed for adolescents. These facilities are so antiquated and overcrowded that there is constant pressure to release the wrongdoers as soon as possible, and children escape from them regularly”.
The incidence of violence against Brazilian children since the “progressive” ECA was enacted has been so high that a quotation attributed by the press to Amnesty International in the 1990s declared:
“Brazil already knows how to resolve the problem of its children – kill them”. As for street children who manage to survive another day, they have then to worry about the next meal and finding a safe place to sleep for the night.
“A social worker has therefore explained that these children are currently subject to an ongoing process of “natural selection” where “the weak die early from disease and violence, (and only) the strong survive to adulthood”.
Augusto Zimmermann is a Brazilian Law Professor and the author of the well-known books Teoria Geral do Federalismo Democrático (General Theory of Democratic Federalism – Second Edition, 2005) and Curso de Direito Constitucional (Course on Constitutional Law, Fourth Edition – 2005). His e-mail is: email@example.com.
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